Demonstration's of Max Weber's Theory of Bureaucratic Perpetuation in Supreme Court Decisions: Marbury v. Madison, Bush v. Gore

Abstract

The Supreme Court dominates America’s legal establishment. Predicting its decisions has, arguably, and for all practicality, become an industry. The traditions of the court have endowed it with a teleological approach which makes predicting the court’s decisions difficult. On important decisions, especially those with political overtones, the Justices on the court show a strong preference to vote along partisan lines, in harmony with the party that nominated them onto the court – but not always. In a review of the court’s history, in key decisions Justices have departed from their more predictable partisanship. Our analysis shows that when judges depart from their predictable partisanship, they do so for fairly consistent, if not predictable, reasons: institution building. This paper argues that the Supreme Court behaves in a manner consistent with Max Weber's social theory: that a bureaucracy will labor to perpetuate itself. The Supreme Court often makes decisions for the purpose of enhancing and perpetuating the institution of the Court itself. Because the Supreme Court is a national institution, at times “institution building”means nation building. This paper studies the tension of partisanship versus institution building in Supreme Court decisions: the dynamics of fission versus fusion, the tension that exist between these two poles and the mechanics of how this is worked out, creates arguably some of the greatest drama in the Court’s history as demonstrated in Marbury v. Madison and Bush v. Gore.