The Era of Change
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2020-08-31
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en
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The Supreme Courts of the United States seem purport to be steadfast while constantly evolving. No definitive theory has yet been found to explain the inconsistencies in Supreme Court decision making. This paper engages the question: “To what extent can Jurisprudential Regimes Theory and Evolutionary Change Theory be applied to the Vermont and Hawaii Supreme Courts’ decisions in the field of same-sex rights?”
I argue that there is considerable evidence in favor of both theories, but that neither is comprehensive. Instead, elements of both should be combined to establish an inclusive theory. I contend that there are “regimes” that regulate how cases are viewed and that these regimes can "break", but the Justices will avoid doing so. During times of great instability, the structures of the Supreme Courts prevent them from matching societal demand. The Justices prefer relying on slow-paced, evolutionary change as much as possible. Once societal issues reach the Supreme Courts, they tend to have already taken center stage in the public debate. This results in the public demanding rapprochement by the Courts, which the Courts cannot give within the limits of the existing regime. The Courts have to abandon the limitations of the current regime to form a different, suitable regime.
Keywords: Jurisprudential Regimes Theory, Evolutionary Change Theory, Supreme Court, Hawaii, Vermont, same-sex rights
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