The Judicial Character of Late Liberal Prudence: Paul v. Davis

Abstract

Abstract A significant ideological shift has occurred in jurisprudential understanding of the social contract. Reading a landmark opinion from Justice Rehnquist—Paul v. Davis (1976)—as a pivot point for this shift, I identify a specific form of parsimonious judgment that has shaped the contemporary relationship between the individual and the state. Three markers of this form of judgment emerge from the opinion: (1) a claim about risks to state bureaucracy as a significant constitutional interest; (2) a slippery slope argument about institutional competence to discipline linguistic ambiguity; and (3) an interpretive practice that resolves this anxiety by binding precedent around a clear principle. This form of judgment has both ideological and normative significance. The opinion justifies a world of risk management that elevates economic liberty claims to exalted status. It disavows traditional markers of classical prudence, such as reverence for tradition, inflection of personal style as moral character, and orientation toward practical aspects of particular cases. Justifying its authority by performing its own rationale, Rehnquist’s opinion is significant for understanding how strategic invention can alter a democratic culture’s understanding of judgment, including its ethical dimensions.