ABSTRACT
This chapter provides an empirical study of all the cases—fewer than fifty in which the Court has cited philosophers. It explores the right-to-die cases with the Philosophers’ Brief and shows how the Court’s focus on history and precedent, rather than on abstract philosophical rights, was highly appropriate, leaving the issue of physician-assisted suicide where it belongs—in the political process. The chapter considers the nature of legal reasoning and the judicial process and finds only a limited place for philosophy. It argues that the reference to a philosopher is often a backdoor means to bring a controversial decision within the respectable mainstream—masking the contentious policy choice being made. The rhetorical ploy of using philosophers in controversial political cases circumvents the institutional limits of the Court and provides a backdoor method for judicial policy making. The empirical evidence suggests that the Supreme Court implicitly adopts this view of using philosophy in its opinions.
