Showing papers on "Majority opinion published in 1993"

The Supreme Court and the Attitudinal Model Revisited

Abstract: This book, authored by two leading scholars of the Supreme Court and its policy making, systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants: the legal and rational choice. Using the US Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions. The book will be the definitive presentation of the attitudinal model as well as an authoritative critique of the legal and rational choice models. The book thoroughly reflects research done since the 1993 publication of its predecessor, as well as decisions and developments in the Supreme Court, including the momentous decision of Bush v. Gore.

The Supreme Court and the Attitudinal Model

Abstract: Preface 1. Introduction: Supreme Court policy making 2. Models of decision making 3. A political history of the Supreme Court 4. Staffing the Court 5. Getting into court 6. The decision on the merits process 7. Opinion assignment and opinion coalitions 8. The Supreme Court and constitutional democracy 9. The impact of judicial decisions 10. Conclusion Appendix Index.

The supreme court as a countermajoritarian institution? the impact of public opinion on supreme court decisions

Abstract: Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Court's collective decisions. The Court's ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Court's ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.

Numbered Voices: How Opinion Polling Has Shaped American Politics

Abstract: Quantifying the American mood through opinion polls appear to be an unbiased means for finding out what people want. But in this study the author demonstrates that the way public opinion is measured affects the use that voters, legislators, and journalists make of it. Exploring the history of public opinion in the United States from the mid-19th century to the present day, Herbst shows how numbers served both instrumental and symbolic functions, not only conveying neutral information but creating a basis authority. Addressing how the quantification of public opinion has affected contemporary politics and the democratic process, Herbst asks fundamental questions about the workings of American politics.

New Evidence About the Existence of a Bandwagon Effect in the Opinion Formation Process

Abstract: This study undertakes an empirical test of the "bandwagon effect"—individuals rallying to the majority opinion. The study is done outside the electoral context on two issues: abortion and the const...

A History of the Supreme Court

Abstract: When the first Supreme Court convened in 1790, it was so ill-esteemed that its justices frequently resigned in favor of other pursuits. John Rutledge stepped down as Associate Justice to become a state judge in South Carolina; John Jay resigned as Chief Justice to run for Governor of New York; and Alexander Hamilton declined to replace Jay, pursuing a private law practice instead. As Bernard Schwartz shows in this landmark history, the Supreme Court has indeed travelled a long and interesting journey to its current preeminent place in American life. In A History of the Supreme Court, Schwartz provides the finest, most comprehensive one-volume narrative ever published of our highest court. With impeccable scholarship and a clear, engaging style, he tells the story of the justices and their jurisprudence--and the influence the Court has had on American politics and society. With a keen ability to explain complex legal issues for the nonspecialist, he takes us through both the great and the undistinguised Courts of our nation's history. He provides insight into our foremost justices, such as John Marshall (who established judicial review in Marbury v. Madison, an outstanding display of political calculation as well as fine jurisprudence), Roger Taney (whose legacy has been overshadowed by Dred Scott v. Sanford), Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and others. He draws on evidence such as personal letters and interviews to show how the court has worked, weaving narrative details into deft discussions of the developments in constitutional law. Schwartz also examines the operations of the court: until 1935, it met in a small room under the Senate--so cramped that the judges had to put on their robes in full view of the spectators. But when the new building was finally opened, one justice called it "almost bombastically pretentious," and another asked, "What are we supposed to do, ride in on nine elephants?" He includes fascinating asides, on the debate in the first Court, for instance, over the use of English-style wigs and gowns (the decision: gowns, no wigs); and on the day Oliver Wendell Holmes announced his resignation--the same day that Earl Warren, as a California District Attorney, argued his first case before the Court. The author brings the story right up to the present day, offering balanced analyses of the pivotal Warren Court and the Rehnquist Court through 1992 (including, of course, the arrival of Clarence Thomas). In addition, he includes four special chapters on watershed cases: Dred Scott v. Sanford, Lochner v. New York, Brown v. Board of Education, and Roe v. Wade. Schwartz not only analyzes the impact of each of these epoch-making cases, he takes us behind the scenes, drawing on all available evidence to show how the justices debated the cases and how they settled on their opinions. Bernard Schwartz is one of the most highly regarded scholars of the Supreme Court, author of dozens of books on the law, and winner of the American Bar Association's Silver Gavel Award. In this remarkable account, he provides the definitive one-volume account of our nation's highest court.

Strategic retirements: A political model of turnover on the United States Supreme Court

Abstract: The president's ability to nominate justices to the United States Supreme Court is one of his most powerful tools for advancing his policy goals. To maximize the use of this tool it is important that he be able to determine how reasonable it is to expect a retirement from the Court during his presidency. Prior research is inconclusive as to whether Court retirements are politically motivated. In this study I develop and test a political model of Court retirements. The results from estimating the model using exponential Poisson regression show there to be an identifiable political element relating to the timing of retirements from the Court.

The Supreme Court Bar: Legal Elites in the Washington Community

Abstract: Who represents litigants in the Supreme Court of the United States? Kevin T. McGuire shows that the most sophisticated of them have the advantage of representation by an elite counsel made up of former clerks to the justices, alumni of the Office of the Solicitor General, partners in powerful Washington law firms, and public interest lawyers, all of whom serve as gatekeepers to the Court.In this study, the first to characterize the bar of the Supreme Court as a whole, McGuire uses survey, archival, and interview data to explore the history and social structure of the community of Supreme Court specialists. In so doing, he assesses the strategic politics of Supreme Court practice, the ways in which dominant litigators can shape the Court's decisions, and what the existence of such an elite implies for judicial fairness.

Race Against the Court: The Supreme Court and Minorities in Contemporary America

Abstract: "Must reading for anyone who seeks a better understanding of the U.S. Supreme Court's role in race relations policy." --Choice "Beware! Those committed to the Supreme Court as the ultimate defender of minority rights should not read Race Against the Court. Through a systematic peeling away of antimajoritarian myth, Spann reveals why the measure of relief the Court grants victims of racial injustice is determined less by the character of harm suffered by blacks than the degree of disadvantage the relief sought will impose on whites. A truly pathbreaking work." --Derrick Bell As persuasive as it is bold. Race Against The Court stands as a necessary warning to a generation of progressives who have come to depend on the Supreme Court of the perils of such dependency. It joins with Bruce Ackerman's We, the People and John Brigham's Cult of the Court as the best in contemporary work on the Supreme Court. --Austin Sarat, William Nelson,Cromwell Professor of Jurisprudence and Political Science, Amherst College The controversies surrounding the nominations, confirmations, and rejections of recent Supreme Court justices, and the increasingly conservative nature of the Court, have focused attention on the Supreme Court as never before. Although the Supreme Court is commonly understood to be the guardian of minority rights against the tyranny of the majority, Race Against The Court argues that the Court has never successfully performed this function. Rather the actual function of the Court has been to perpetuate the subordination of racial minorities by operating as an undetected agent of majoritarian preferences in the political preferences. In this provocative, controversial, and timely work, Girardeau Spann illustrates how the selection process for Supreme Court justices ensures that they will share the political preferences of the elite majority that runs the nation. Customary safeguards that are designed to protect the judicial process from majoritarian predispositions, Spann contends, cannot successfully insulate judicial decisionmaking from the pervasive societal pressures that exist to discount racial minority interests. The case most often cited as the icon of Court sensitivity to minority rights, Brown v. Board of Education, has more recently served to lull minorities into believing that efforts at political self-determination are futile, fostering a seductive dependence and overreliance on the Court as the caretaker of minority rights. Race Against The Court demonstrates how the Court has centralized the law of affirmative action in a way that stymies minority efforts for meaningful political and economic gain and how it has legitimated the legal status quo in a way that causes minorities never even to question the inevitability of their subordinate social status. Spann contends that racial minorities would be better off seeking to advance their interests in the pluralist political process and proposes a novel strategy for minorities to pursue in order to extricate themselves from the seemingly inescapable grasp of Supreme Court protection. Certain to generate lively, heated debate, Race Against The Court exposes the veiled majoritarianism of the Supreme Court and the dangers of allowing the Court to formulate our national racial policy.

The Tasmanian Small Claims Court : an empirical study

Abstract: This dissertation presents the results of an empirical study of the Tasmanian Small Claims Court, established in 1985. The major purpose of the study was to evaluate the extent to which the Court is effective in achieving the purpose for which it was designed--the informal, speedy and inexpensive resolution of minor civil disputes. In conducting the evaluation a multiple evaluation methodology was adopted which sought to illuminate the diverse perceptions of various groups-- disputants, community organisations, Magistrates, and court officials--all of whom are involved with the Small Claims Court. The individual components of the methodology incorporated: (1) a detailed literature survey of Small Claims Courts within the wider context of dispute resolution; (2) a historical sketch of the establishment of a Small Claims Court in Tasmania; (3) a file survey of Small Claims Court records for the fiscal year 1989; (4) a survey of disputants who utilised the Small Claims Court over the period from 1 July 1988 through 30 June 1989; (5) interviews with disputants, court staff, administrators, magistrates and community organisations such as the Hobart Community Legal Service, Legal Aid, and Consumer Affairs; (6) personal observation of approximately thirty cases; and (7) participant observation in conducting my own case before the Small Claims Court. The empirical data present a detailed account of how Tasmanian Small Claims disputants perceive and utilise the Small Claims Court. Included in this account are the types of claims filed and by whom; the amount claimed; the role played by lawyers and insurance companies in giving advice; the perceived helpfulness of court staff; the disposition of cases; the nature of settlements; the perceived degree of formality and privacy, disputant satisfaction with the Court and their perceptions of the Court's strengths and weaknesses; problems of enforcement; and a description of the demographic characteristics of those who utilise the Small Claims procedure. The study further analyses the Court from the perspective of magistrates, court officials and community groups who all have various degrees of involvement with the Small Claims Court. The principal finding of the study is that the Tasmanian Small Claims Court is, to a large extent, achieving the goals for which it was established. More civil cases are tried in Small Claims than any other court; the vast majority of disputants are satisfied with the system and would use it again; the court staff are considered helpful; and for most litigants there is the appropriate degree of privacy and informality. The major factor influencing disputants' attitudes of fairness, impartiality and general satisfaction with the Court was whether or not disputants felt there was an adequate opportunity to present their side of the case. However, it was found that some areas of the Court's operation could be improved, the major recommendations being: 1) the need for greater public awareness about Small Claims; 2) more education regarding the primary mediation function of the Court; 3) closer working relationships between the Small Claims Court and other less formal dispute resolution agencies; 4) specialised training for Small Claims staff and Magistrates; 5) court forms and brochures written in plain English; and 6) improved physical facilities more conducive to the informal atmosphere required of small claims actions. Finally, the study highlights the need for systematic, ongoing evaluation of the Small Claims Court with the aim of making further refinements to ensure that, in pursuing the goal of providing a speedy, inexpensive and informal method of resolving minor civil disputes, the rhetoric of Small Claims Court dispute resolution matches the reality.

Captive Court : 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.

The Supreme Court of the United States : an introduction

Abstract: An overview of the Supreme Court - its development, powers and roles the members of the court the cases the Supreme Court decides decision-making factors the Court's policies - interpretation, inplementation and impact the role of the Court in the governmental process.

The chief justices' self assignment of majority opinions in salient cases

Abstract: This study examines the extent to which the chief justices on the United States Supreme Court self-assign the majority opinion in salient cases. The period covered is 1801 until the summer of 1989. I discovered that the chief justices as a group self-assigned 35% of the majority opinions in salient cases. Some chief justices, however, self-assigned at a much higher rate than others. The range extends from Marshall (89%) to Fuller (15). Two senior associate justices— Justice Brennan and the first Justice Harlan—were more advantaged in opinion assignments in salient cases than Chief Justices Rehnquist and Fuller. I also discovered that the chief justices were somewhat more likely to self-assign when the final vote was unanimous.

Planned Parenthood v Casey: The Impact of the New Undue Burden Standard on Reproductive Health Care

Abstract: The recent US Supreme Court decision in Planned Parenthood v Casey , by changing the legal standard by which restrictions on abortion are evaluated, will have a profound effect on access to reproductive health care in the United States. This article reviews the Pennsylvania antiabortion restrictions at issue in Casey and discusses the ways in which the new constitutional standard fundamentally weakens the legal protections previously afforded women and physicians in the 1973 case, Roe v Wade . While the majority opinion reaffirmed a woman's right to choose an abortion, the opinion opens the door to a multitude of new restrictive abortion laws, which diminish, and in some cases completely block, a woman's ability to exercise that right. The effect of weakened legal protection will fall most heavily on young, poor, minority, and rural women, who will be unable to overcome obstacles imposed by mandatory waiting periods, biased counseling, and parental notification requirements. The restrictions are also likely to exacerbate the shortage of physicians providing abortion services by making the procedure more costly and the providers' jobs more dangerous. Finally, the medical community can help to ensure women access to comprehensive and competent reproductive health care. ( JAMA . 1993;269:2249-2257)

The Supreme Court and American Democracy

Abstract: Written expressly for a student audience, this core text has a non-ideological theme - the tension between the Supreme Court's power of judicial review and the democratic, majoritarian features of American government. This allows the reader to examine the place of the Court in the broader context of American society and the American system of democratic self-government. Seven case studies show constitutional litigation in action.

A Transformed Triangle: Court, Congress, and Presidency in Civil Rights

Abstract: The relative permeability of the three elements of a triangle-the Supreme Court, Congress, and the president-to civil rights interest groups has varied over time For almost two decades after World War II, the Supreme Court was the groups' preferred arena because Congress was resistant and presidents could thus do little or were hesitant to act For a brief time in the mid-1960s the president and Congress became supportive of civil rights groups' claims while the Court also remained accessible Starting in the late 1960s executive and legislative support for civil rights moderated, with presidential support declining significantly in the 1980s When the Supreme Court adopted that latter stance, Congress became the body through which to protect civil rights by reversing the Court's decisions In this examination of the “transformed triangle” in civil rights policymaking, we look at this change over time and at “flip-flops” in litigation as one administration changes the position espoused by its predecessor, and we also give some attention to the Supreme Court's response to congressional reversal of its rulings

Planned Parenthood v Casey

Abstract: To the Editor. —I would like to comment on the article by Benshoof. 1 While it is a well-written and interesting article, it is replete with misleading statements and is not as neutral or unbiased as she would have us believe. Her article is staunchly proabortion, and she never acknowledges or demonstrates concern for the view that the humanity of the fetus is a central concern to those of us who oppose abortion on demand. Like most proabortion apologists, she emphasizes the right to privacy as the central issue, thereby obscuring the issue of the existence of human life in the fetus. It should be said that even Justice Blackmun, in his majority opinion of Roe v Wade , stated that the right to privacy is not absolute and concludes that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered

Is the Supreme Court the Guardian of the Constitution

Abstract: The Supreme Court has recently undergone a crisis of legitimacy. This book examines the controversy surrounding the conventional wisdom that the Court is the guardian of, as well as the final authority on, the Constitution and the ultimate defender of our liberties.

The Role of Public Opinion in Constitutional Interpretation

Abstract: De Tocqueville famously asserted that American lawyers, who were America’s aristocracy at the time, could not long resist public opinion. This article surveys the Supreme Court’s usage of the concept of 'public opinion' over the centuries. Sometimes the Court considers 'public opinion' to be a threat, a something to be protected, or even a validator of its own decisions.

Raw Judicial Power?: The Supreme Court and American Society

Abstract: The rise of "the social issue" The Court and constitutional interpretation capital punishment abortion race and affirmative action gender equality religion, sex and politics.

The Missouri Supreme Court: From Dred Scott to Nancy Cruzan

Abstract: In "The Missouri Supreme Court, " distinguished legal historian Gerald T. Dunne captures the people and personalities, conflicts and controversies of Missouri's rich legal history. Using a lively anecdotal approach to examine the key cases and political disputes, as well as the strong-minded incumbents who have served on the court's bench, he places Missouri's judicial system in the context of the overall political and legal developments in the United States as a whole. Dunne sets the scene by presenting Missouri before it became a state, tracing the evolution of Indian, Spanish, and French legal influences until the final adoption of a legal system based on the English common law. Then, through a compelling narrative, he recounts not only the factual background of major cases but also interesting biographical information about the disputants. Dunne reveals the fascinating history of the Missouri Supreme Court from the basic violation of human rights in the Dred Scott case up through the ethical questions addressed in the case of Nancy Cruzan's right to die. These are only two of the important decisions of the United States Supreme Court that had their origins in Missouri and are discussed here. These cases are landmarks not only because of what the higher courts said about them, but because of their intrinsic historical interest.Dunne concludes with portraits of key judges who served on the supreme court. He tells how diminutive Abiel Leonard killed a man in a duel on his way to the Missouri Supreme Court bench. And we learn of "The Sage of Sedalia," Henry Lamm, if not the greatest, certainly the most quotable member of the court who left behind a sparkling sequence of aphorisms. By incorporating such colorful details and enlivening his subject with gusto, charm, and humor, Dunne personalizes the Missouri Supreme Court beyond its institutional function."The Missouri Supreme Court" is an enduring work that reflects the human condition, in both the law and the society it serves, in all its weakness and strength, error and achievement, and occasional glory.

Charles Evans Hughes and the Blaisdell Decision: A Historical Study of Contract Clause Jurisprudence

Abstract: In 1934, in the midst of the Depression, the United States Supreme Court, in Home Building & Loan Ass’n v. Blaisdell, upheld the constitutionality of the Minnesota Mortgage Moratorium Act. The Court’s 5-4 decision marked a significant step in the Court’s transformation of its jurisprudence of economic liberty, as a bare majority of the Court, led by Chief Justice Charles Evans Hughes, flexibly interpreted the Contract Clause prohibition of the impairment of contractual obligations to allow a state to modify a mortgage agreement. In so doing, the divided Hughes Court signaled a willingness to adapt the Constitution to changing economic circumstances. Although it would be three more years before a majority of the Court consistently adapted living constitutionalism in support of the laboratories of democracy and the power of government – both state and federal- to regulate private economic affairs in the public interest, Chief Justice Hughes’s Blaisdell opinion was an integral step in the constitutional revolution of the 1930s.This article analyzes the Blaisdell decision from the duel historical perspectives of the nineteenth and early twentieth century Contract Clause jurisprudence and the pragmatic federalism of Charles Evans Hughes. It explains that the Court’s decision to reconcile the Contract Clause prohibition of state laws that impaired contract obligations with the reasonable exercise of state police powers reflected a long line of cases that constrained the scope of the constitutional limitation through the prism of federalism. From this perspective, Chief Justice Hughes crafted a fairly modest opinion that nudged the Court along the path of living constitutionalism yet also heeded Court precedent that recognized the authority of states to modify contract remedies in ways that left intact underlying contract obligations. The article also examines the extent to which Hughes’s judicial statesmanship allowed for significant contributions by Justices Stone and Cardozo in the creation of an important opinion in the evolution of federalism and Supreme Court judicial review.

Justice Lies in the District: The U.S. District Court, Southern District of Texas, 1902-1960

Abstract: In 1902 a new federal district court court was established to serve a broad segment of the Texas Gulf Coast region, including Houston. In the use of its discretion to choose between "private" and "public" law, this court for many years served the interests of the region's economic and political elite and helped stabilize a fast-changing economy that was undergoing wild swings of boom and bust. After 1945, however, the court reluctantly began to address growing demands for public law enforcement of national policies, including civil rights, and by 1960, public law issues had come to dominate the court's dockets. In this groundbreaking study of a representative lower federal court, Charles L. Zelden provides insight into the functioning of district courts and their impact on the larger legal, economic, and political systems. Combining the perspectives of legal history with those of economic, business, urban, political, and social history, and drawing on largely untapped manuscript court records, he offers a unique view of the ways in which the federal courts have shaped the nation's public and private life. The well-crafted narrative looks at the full range of the court's decisions, clearly explaining complex legal issues. It sketches in as well the personalities and political positions of the judges. Zelden demonstrates that a judge's personal and class background largely determined his judicial philosophy and set his agenda on the bench. Zelden's work contributes an important dimension to the growing literature on the economic, social, and urban history of Texas and of America in the first half of this century. It elucidates the judicial role in consolidating a cultural ethos of economic growth, self-reliant individualism, and freedom from governmental restraint.

Transformations in Supreme Court thought: The irresistible force (Federal Indian law & policy) meets the movable object (American Indian tribal status)

Abstract: This article is a content analysis examination of 107 federal court cases involving American Indian tribal sovereignty and federal pleary power rendered between 1870 and 1921. Our focus, however, is the U.S. Supreme Court's Indian Law jurisprudence; thus ninety of the cases analyzed were Supreme Court opinions. The cases seemingly entail two separate braces of opinions. One brace included decisions which affirmed tribal sovereignty. The other brace entailed cases which negatively affected tribal sovereignty. These negative decisions generally relied on doctrines such as plenary power, the political question doctrine, or the so- called “guardian-ward” relationship. We argue that the Supreme Court, as a partner in the ruling national alliance, generally deferred to the legislative branches during this critical historical era, Indian treaties and extra- constitutional rights notwithstanding. In seeking to explain the two separate, though not unrelated sets of opinions, we focus on the Court's role in formulating public policy towards American Indian tribes in four major issue areas: congressional power, criminal law, allotment and membership, and natural resources. And we attempt to explain how and why the Court's perception of these issues were transformed over time and how these changes affected tribal sovereign rights. Finally, we develop a synthetic, abstract model of judicial decision-making which provides some explanatory power regarding why the Court decides Indian related issues the way it does.

Court Management Past, Present, and Future: A Comment on Lawson and Howard

Abstract: In a comment upon and extension of Lawson and Howard’s contribution to this issue, the authors pursue three major themes. The first is the ends served by court managers. The second is the control and operations of urban trial courts as the stimulus to the development of the court management profession. The third is seven themes that require future address by court management professionals. In the authors’ view, these issues will demand changes in what courts do and how they do it. This comment is adapted from a paper originally prepared for the Second National Conference on Court Management, Phoenix, Arizona, 1990, and from a somewhat different version of the original paper published in The Court Manager. The Justice System Journal is grateful to its sister publication for cordially making the article available for inclusion here.