ABSTRACT
This chapter examines what Neomi Rao considers the best example of judicial policy-making via the backdoor: the legalization of abortion in Roe v. Wade. Rao argues that law is a distinct practice from philosophy, as legal decisions arc constrained by dictates of history, precedent, and institutional checks. In Rao's view, philosophy lacks such constraints, tending to embrace conceptual and theoretical abstractions. The legitimacy of philosophical insights is grounded independently of practices. The increased use of citations to philosophers is interpreted as a possible effect of judicial activism. In Rao's view, philosophy is essentially a discipline composed of "metaphysics and epistemology." Rao claims the Court's majority decisions avoided the "Philosophers' Brief" because the philosophers' argument was grounded in theory, not substantive legal argument surrounding issues of judicial precedent. Philosophy is presented as a large umbrella covering diverse sub-fields, two of which are philosophy of law and political philosophy. These sub-fields are of great use to law.
