Showing papers on "Majority opinion published in 1992"

The Etiology of Public Support for the Supreme Court

Abstract: The Supreme Court, like all political institutions, requires some minimal level of support because, as the high bench performs its political and constitutional roles, the justices must on occasion stand against the winds of public opinion. With data from a recent national survey, we reexamine the levels, sources, and explanations of public support for the Supreme Court. Since racial differences in attitudes toward the Court are so great, we focus here only on the attitudes of white U.S. citizens. Our purposes are both substantive and methodological. On the substantive front, we examine changes in the etiology of support. We investigate the traditional explanations of diffuse support, but, more important, we introduce and evaluate the power of a new set of variables, political values. These political values do an uncommonly good job of predicting attitudes toward the Court. In addition, we devote particular attention to the important role of "opinion leaders" as supporters of the Court. These leaders relate to the Court in a fashion very different from that of the mass public. On the methodological front, we offer an alternative means of thinking about and capturing diffuse support for the Court among the mass public. We close with speculations about the process by which diffuse support for the Court changes over time and, more generally, the implications of attitudes among the mass public and opinion leaders for the functioning of the Supreme Court.

On the nature of supreme court decision making

Abstract: How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key determinant. The extralegal model posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

Congressional control or judicial independence : the determinants of U.S. Supreme Court labor relations decisions, 1949-1988 / 1637

Abstract: Extending the approach to congressional and regulatory institutions developed by Shepsle and Weingast, this article introduces an ideologically motivated judiciary. The model yields empirically refutable implications which are then tested in the framework of modelling the Court's decisions on industrial labor relations. Using information on politicians' ADA scores, the composition of the Court, and the decisions of the Court, we obtain estimates of (a) the position of the Court in relation to the relevant members of Congress, and (b) the determinants of labor policy through the years. We find, first, that the Court was constrained by Congress over at least half of the period. Second, a 10-point increase in the ADA rating of the relevant member of Congress, or in the imputed ADA rating of the Supreme Court, increases the probability of a pro-union decision by approximately eight percentage points. Third, the imputed political preferences of the Court seem to be well explained simply by its political composition. Fourth, the Court does not seem to defer to the NLRB. Finally, though parsimonious, our model is a relatively good predictor of the Court's decisions, and superior to both a simple political bargaining model without institutional content and a nonsophisticated or purely legalistic judicial decision-making model. Our results, then, suggest that the Court responds, albeit indirectly, to interest group pressures.

The Supreme Court and Legal Change : Abortion and the Death Penalty

Abstract: The authors analyze abortion and death penalty decisions by the Supreme Court and argue that they provide prime examples of abrupt legal change. After proposing that the strength of legal arguments has at least as much impact on Court decisions as do public opinion and justices' political beliefs, they focus on the way litigators propel certain issues onto the Court's agenda and seek to persuade the justices to affect legal change.

Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-making

Abstract: Although it can be argued that legislative and judicial decision-makers preside over similar issue areas, the effects of the rules emanating from the two types of policy-makers can differ dramatically. The absence of consideration of this difference represents a major shortcoming in the literature. When Congress passes a law, that law affects everyone in the same way. That is, any individual engaged in an activity regulated by the law is constrained in the same way. Any law that discriminates arbitrarily among individuals is considered to be unconstitutional. Judicial policy decisions, however, need not demonstrate this universalistic quality. The actual decision handed down in a particular case is binding only on the participants in the case. The effect that the ruling will have on other

Public opinion and congressional representation

Abstract: The political views of citizens should be reflected in the government of a democratic society. Typically, citizens' views are expressed by their elected representatives. We used the Center for Political Studies (CPS) 1986 National Election Study and a mail survey of the U.S. House of Representatives to look at representation collectively and dyadically. Collectively, we find some degree of congruence between leaders and followers. However, there are significant differences between them on half of the issue items, with the leaders usually taking more extreme positions than the followers. We looked at leaders and followers dyadically in 33 districts using Achen's measures of representation. We found that the representatives' views are fairly close to those of their constituents, that representatives are efficient at positioning themselves at the mean constituent position, and that representatives respond to shifts in liberalism/ conservatism in their districts. Legislative representation has been the topic of numerous political debates. One controversy centers on the role of the legislator in relation to his or her constituency. Are legislators free to act as they please? Should they use their own judgment to do what is best for their constituents? Or are representatives, by definition, required to reflect accurately the opinions of their constituents? We respond "no" Public Opinion Quarterly Volume 56:185-205 ? 1992 by the American Association for Public Opinion Research All nghts reserved. 0033-362X/92/5602-0001$02.50 CHERYL LYN HERRERA is a Ph.D. candidate in political science at the University of California, Santa Barbara. RICHARD HERRERA is assistant professor of political science at Arizona State University. ERIC R. A. N. SMITH is associate professor of political science at the University of California, Santa Barbara. We would like to thank Richard Brody, John Geer, Kim F. Kahn, John Kessel, Patrick Kenney, Warren Miller, and two anonymous reviewers for their helpful comments on previous drafts of this article. An earlier version of this article was presented at the 1988 Western Political Science Association meeting in San Francisco. Some of the data used in this paper were made available by the Inter-University Consortium for Political and Social Research. We bear sole responsibility for the analyses and interpretations presented here. This content downloaded from 207.46.13.33 on Sat, 26 Nov 2016 04:22:08 UTC All use subject to http://about.jstor.org/terms 186 Herrera, Herrera, and Smith to the first question and argue that legislators should use their own judgment as well as reflect public interest and opinion. This is consistent with Pitkin's definition of political representation, which includes the idea that legislators should act in the interest of those represented and that "they should look after the public interest and be responsive to public opinion, except insofar as non-responsiveness can be justified in terms of the public interest" (Pitkin 1967, p. 224). In democracies, citizens' views are expressed by their elected representatives. Thus, most empirical studies of representation focus on the extent of agreement between political leaders and the mass public. Agreement between legislators and the public can be conceived of collectively or dyadically (Weissberg 1978). Collective representation refers to a collective body representing a people, while dyadic representation refers to a particular legislator and the constituency that elected that legislator. We shall employ both dyadic and collective measures of representation in order to provide as much information about the representativeness of members of Congress as possible. We use the opinions of the members of the U.S. House of Representatives, rather than the rollcall votes, because we believe that representatives' opinions serve as proxies for their behavior. Studies show a high correlation between congressional attitudes and roll-call behavior (Smith, Herrera, and Herrera 1990; Sullivan and O'Connor 1972). In addition, "congressional attitudes are important in their own right, functioning in the long gestation period before roll-calls, setting the agenda, and framing the specific questions to be decided by a roll-call" (Backstrom 1977, p. 412).

An Integrated Case-Related Model of Judicial Decision Making: Explaining State Supreme Court Decisions in Judicial Review Cases

Abstract: Employing data from more than three thousand state supreme court judicial review cases, I construct and test an integrated case-related model of judicial decision making. Logit analysis reveals that the type of issue raised, the identity of the challenging party, the constitutional arguments advanced, the centrality of the constitutional challenge, and the lower court ruling on constitutionality all have an independent impact on state supreme court decisions in judicial review cases. The findings clearly provide support for the notion that more complex theoretical and methodological approaches provide a more complete explanation of judicial decision making.

Supreme Court Decision Making: The Impact of Court Composition on State and Local Government Litigation

Abstract: This article examines the participation and success rates of state and local governments before the U.S. Supreme Court during 1953-1989. We find that they have experienced greater access to the Court over time, and that they have been winning an increasingly higher proportion of cases when appearing as direct parties, with some interesting variations depending on the type of case and litigants. Time-series analysis indicates that the most important factor in state and local success is the increasingly conservative ideology of the Court from the Warren years to the Rehnquist Court. An exception to improved performance is federalism cases. The findings have implications for the future character of American federalism and the development of a general model of judicial decision making.

Federal Agencies and the Supreme Court: An Analysis of Litigation Outcomes, 1953-1988

Abstract: This article examines differences in support among federal agencies appearing before the Supreme Court. The author reports that there are significant differences in levels of support, among the agencies, when we control for agency type and the directionality of the agency's decision over time. The findings of the analysis indicate that the Supreme Court is more likely to support agencies that are independent in nature and perform a quasi-judicial role in the bureaucracy. Although executive type agencies are supported to a high degree, they are significantly less likely to be supported when compared with independent agencies. Examining the success of agencies over time, the author also finds that the success of federal agencies is dependent on the directionality of the agency's decision and the ideology of the Court. The Warren Court was more likely to support an agency when its decision was liberal than when it was conservative, whereas the Burger Court responded in an opposite manner. The conclusion from...

Supreme Court Authority in the Judiciary A Study of Remands

Abstract: In the relationship between the Supreme Court and lower courts, one important issue is the extent to which lower court judges recognize and respond to the Supreme Court's authority. This article explores the Court's authority through a study of cases remanded by the Court during the 1965-1974 terms. We examine the relationship between the outcomes of cases in the lower courts after Supreme Court remands and several conditions that seem likely to affect the strength of the Court's authority. The statistical results indicate that most of these conditions have a significant impact on outcomes. More broadly, these results provide evidence that the Court's authority is a significant force in shaping the behavior of judges in the lower courts.

The Supreme Court's First One Hundred Charter of Rights Decisions: A Statistical Analysis

Abstract: This study presents a descriptive statistical analysis of the Supreme Court of Canada's first one hundred Charter of Rights decisions (1982-1989). Charter appeals now constitute one-quarter of the Court's annual caseload. The Court has abandoned the judicial self-restraint that shaped its pre-Charter civil liberties jurisprudence. It has upheld rights claimants in 35 percent of its decisions and declared nineteen statutes void. Seventy-five percent of the Court's Charter work dealt with legal rights and criminal justice, but more provincial statutes were declared invalid than federal. After an initial period of consensus, the Court divided into identifiable voting blocs, with wide discrepancies between different Judges' support for Charter claims. In three respects-composition of docket, success rate, and nullification of statutesthe Canadian Supreme Court closely resembled its American counterpart.

The emergence of a new ideology: The business decisions of the Burger Court.

Abstract: Unlike the Vinson and Warren Courts, efforts to cumulatively scale the business decisions of the Burger Court on the basis of the justices' responses toward economic liberalism have proven unsuccessful. Several reasons are advanced for this change including the Court's attitude to transfers of power between state government, federal government, and individual business entities; the exercise of agency or judicial power; and two-case characteristics. Through the use of probit, we find that distinct patterns exist among the independent variables in relation to the direction of the Court's decision. Based on the explanatory power of our model, it is evident that a new ideology has emerged: "instrumental libertarianism," in which the Court effectuates its libertarianism through the exercise of judicial power, agency action, and considerations of federalism.

The Supreme Court And Partisan Realignment: A Macro- And Microlevel Perspective

Abstract: An introduction to the Supreme Court, partisan realignment and the invalidation of state and federal politics the Civil War realignment realignment in the 1890s the New Deal realignment the critical elections of 1960-1964 toward an understanding of the Supreme Court and realignment.

When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions

Abstract: When the Supreme Court decides a case, the Federal District Courts and Circuit Courts of Appeals are responsible for finding the governing rules of law in that decision. The first lower court to deal with the issue often \"defines\" the holding of the case by reviewing the reasoning found in the Supreme Court's opinion. Other lower courts then rely largely on this interpretation. Plurality decisions' greatly complicate this process because lower courts not only have to find the rationale of each opinion, but must also decide which opinion's rationale governs. With all these choices, it is not surprising that plurality decisions often do \"more to confuse the current state of the law than to clarify it.\" 2

The Captive Court: A Study of the Supreme Court of Canada

Abstract: Throughout his study, Bushnell investigates the question of the absence of an independent judicial tradition in Canada and the development of distinct legal doctrine by the Supreme Court. He analyses the nature and cause of the lack of independent thought that makes the Court "captive" to inherited traditions and legal doctrines and prevents it from achieving its true potential within the Canadian legal system. Previous studies of the Court have concentrated on the years after 1949; by expanding the coverage to include the first three-quarters of a century of the Court's existence, Bushnell has uncovered a critical aspect of Canadian legal history. Bushnell provides an analysis of more than eighty cases decided by the Court between 1876 and 1989. He examines the backgrounds and views of the sixty-seven judges who served on the Supreme Court during this period, evaluating both the role they felt they played in Canadian society and the role others expected them to play. He studies the question of the right of appeal to the Judicial Committee of the Privy Council and its effect on the Supreme Court, as well as the movement toward the abolition of appeal. In the concluding part of the study Bushnell considers the controversy over the demand for impartial justice, criticism of the judiciary, and the judges who will take the Court into the twenty-first century.

Six Notions of ‘Political’ and the United States Supreme Court

Abstract: Six different notions of ‘political’ are commonly used in discussions of the US Supreme Court. All six are familiar, but the distinctions among them are seldom carefully drawn. The six are: (1) purely definitional, in the sense that the Supreme Court, as an appellate court of last resort inevitably authoritatively allocates values; (2) empirical, in the sense that litigants use the Court to try to achieve their political purposes; (3) influence seeking, in the sense that the justices have a natural desire to prevail in arguments within the court; (4) prudential, in the sense that the justices frequently consider the probable consequences of their decisions; (5) policy-oriented, in the – usually pejorative – sense that justices are said to use the Court and the law as a cover for pursuing their own policy and other goals; and (6) systemic, in the sense that the Court's decisions frequently, as a matter of fact, have consequences for other parts of the American political system. These six notions are considered in the context of recent abortion decisions.

The Inter-American Court of Human Rights

Abstract: The inter-American system and the organization of American states origins of the system the organization of American states the major organs of the OAS the regional system for protecting human rights under the OAS charter the American convention on human rights the structure and procedure of the court structure of the court rights, duties and responsibilities of judges organization of the court the practice and procedure of the court contentious proceedings advisory opinions the contentious jurisdiction of the court acceptance of the court's jurisdiction waiver of commission procedures exhaustion of domestic remedies evidence and the burden of proof in contentious cases judgments in contentious cases remedies the advisory jurisdiction of the court basis of the court's advisory jurisdiction who may request an advisory opinion? what may be the subject matter of an advisory opinion? the court's obligation to tender advisory opinions disguised contentious cases the meaning of "other treaties" in article 64(1) the meaning of "domestic laws" in article 64(2) agencies of the state competent to seek an opinion the developing jurisprudence of the court the court's techniques of interpretation the literal approach context and object and purpose supplementary means of interpretation the development of international law by the court the law of treaties state responsibility the rule against discrimination the development of the court's jurisprudence concerning the convention substantive rights disappearances - the right to life (article 4), the right to humane treatment (article 5) and the right to personal liberty (article 7) the right to nationality (article 20) freedom of thought and expression (article 13) right to reply (article 14) restrictions to, and derogation from, rights protected by the convention evolving concepts, current problems and future prospects the court, its ideology and human rights human rights and ius cogens human rights as novel instruments lack of use of the court's contentious jurisdiction general problems concerning the international protection of human rights problems arising from the structure of the convention.

Feminist Argumentation Before the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme: The Sound of One Hand Clapping

Abstract: The Canadian Charter of Rights and Freedoms and, more specifically, the sections which 'guarantee' equality, sections 15 and 28, present Canadian feminist litigators with a unique opportunity to articulate women's realities within a constitutional framework and to demand a legal response. The recent decision of the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme makes it plain, however, that the right to speak and make an argument does not include a corresponding obligation on the part of judges to listen, to understand, or even to answer feminist analysis. The case law decided pursuant to the Charter attests to the prescience of those Canadian academics who articulated a critique of Charter rights. These authors warned that the Charter would prove most advantageous to the interests already served by law, to those with wealth and wherewithal to use legal means, and to those whose 'rights' in fact present little by way of challenge to our economic and political structures. Furthermore, they predicted that legislative gains achieved through the democratic process such as social welfare legislation, workplace safety laws and collective bargaining rights would become vulnerable to Charter challenge, and that our ability to recover from such losses would be extremely limited given that other forms of political struggle have been weakened by the emphasis on the Charter.The negative implications of the Charter are starkly illustrated in the area of women's rights. Feminist litigators have had an influence upon the shape of equality doctrine as it emerges from the Supreme Court and there have been several victories which benefit women. However, not one of the successful cases was decided in reliance upon women's section 15 equality rights. The narrowness of those cases and the overall patterns of Charter litigation suggest that the gains which women have made through the political process are in jeopardy. In this comment, I roundly criticize the majority opinion in Seaboyer, both in terms of result and in terms of failure to grapple with the challenging feminist arguments put to the court. I argue that the result in Seaboyer is reflective of larger patterns of Charter outcomes which are shaped by, among other things, the underlying structures of the criminal trial and the Charter itself. This is not to suggest that feminists should disengage altogether from Charter litigation: we do not have much choice other than to defend legislative gains against Charter challenge and Charter test cases may be one of several significant strategies available to oppose repressive laws and policies. I am, however, arguing that the structures and patterns of Charter litigation pose significant limitations on what we can achieve or preserve through this avenue. And, while our efforts in this regard will provide valuable lessons for our future strategies, in some areas of the law - and rape may well be one of them - decisions like Seaboyer may demand that we shift our focus away from reliance on litigation, and perhaps away from law altogether, in light of these constraints.

Free Expression: The First Five Years of the Rehnquist Court

Abstract: A statistical analysis of opinions dealing with free-expression issues rendered during the first five years of the Rehnquist Court shows that this court was more supportive of such issues than was the Burger Court, which immediately preceded it. When the first four years of the Court's record are separated from the last year's, however, a different picture emerges. The drop in support for free-expression issues that appears as the Court truly becomes a “Rehnquist Court,” due to retirements of carry-over justices, may give rise to concerns about the future of free-expression rights.

Separation of Church and State: New Directions by the New Supreme Court

Abstract: Issues of separation of church and state and freedom of reli gion have represented one of the most active areas of constitu tional adjudication in the United States Supreme Court during the decades of the 1970s and 1980s. Indeed, in the past several years, the Court has made major changes in its approach to every important aspect of the subject. Some of these shifts are more obvious than others, and additional moves are likely to oc cur in the next few years. This article will explore four general themes revealed in recent decisions and then discuss those

The History of the Law in Massachusetts: The Supreme Judicial Court 1692-1992

Abstract: What conclusions can we draw from this brief survey of the interplay of the Supreme Judicial Court and the Massachusetts Constitution in the eras of the centennial and bicentennial of the Court? The first, and both most obvious and most important, is surely that generalizations are difficult, if not impossible.

The Chancery Court of Nova Scotia: Jurisdiction and Procedure 1751-1855

Abstract: The Court of Chancery in Nova Scotia enjoyed a history that may best be described as a progression from obscurity to infamy. During its first half-century, the Court operated with an intermittent caseload and remained out of the public eye. During its final years, the Court came under increasing public criticism as an unnecessary and inefficient institution. This paper seeks to delve behind these criticisms to ask two questions: what did the Court do and how did it do it? This inquiry into jurisdiction and procedure is undertaken with the criticisms of the Court in mind. Indeed, I hope that an enhanced knowledge of the Court will bring its shortcomings into historical focus. The research for this paper involved an examination of the original case files of the Court, along with various records kept by court officials. From this data base, I have attempted to draw certain conclusions about the Court's internal workings. This is a very narrow focus and I readily concede that at times the analysis will (of necessity) proceed in a historical vacuum. Therefore, the results of this paper can best be characterized as a series of interim hypotheses. The paper begins with an overview ofthe Court ofChancery, based on the work of historians to date. The results of my examination of original court documents follows, separated into jurisdictional and procedural categories. Finally, some conclusions and hypotheses will be drawn and ideas for future research will be suggested.