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Constitutional ConscienceThe Moral Dimension of Judicial Decision$
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H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780226677255

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226677309.001.0001

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The Rule of Five

The Rule of Five

(p.16) 1 The Rule of Five
Constitutional Conscience
University of Chicago Press

The late Supreme Court Justice William J. Brennan argues that the most important rule in constitutional law is the so-called Rule of Five. A five-justice majority on the Court, the strong Rule of Five asserts, can do anything, at least in deciding constitutional law cases: in such cases, the conventions of American political life do not recognize any formal power to overrule a decision short of the adoption of a constitutional amendment. The rule is also, if true, a central feature in the moral circumstances in which the justices act when they exercise as a body the power of judicial review. This chapter considers what it believes to be the most salient features of the moral circumstances in which a Supreme Court justice finds him- or herself when called upon to make a constitutional decision. By its structural location in the political and legal order, and by long tradition, the Court's decisions cannot be reversed except by its own action or by the cumbersome and indeed almost unworkable processes required under Article V to amend the Constitution.

Keywords:   Rule of Five, Supreme Court, William J. Brennan, constitutional law, justices, judicial review, constitutional decision, Constitution

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