Showing papers on "Majority opinion published in 2000"

Crafting Law on the Supreme Court: The Collegial Game

Abstract: 1. Introduction 2. Selecting an author: assigning the majority opinion 3. A strategic response to draft opinions 4. The decision to accommodate 5. The politics of coalition formation 6. Conclusion.

Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions

Abstract: W T He examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court, and its decision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases'fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of the case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the "audit rate" tied to observable facts and the ideology of the lower court judge. We derive comparative static results and test them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model. H ierarchical control of organizations is problematic throughout the realm of politics. Congress and presidents attempt to control agencies, upper levels of bureaucracies attempt to control lower levels, and higher courts strive to control lower courts. With incomplete information about their subordinates' decisions and knowledge, superiors in rule-based hierarchies often employ some form of auditing. In this article we study how the Supreme Court uses signals and indices from lower courts to pluck a relative handful of cases from a plethora of potential candidates for review. Our point of departure is the role of review in enforcing the doctrinal preferences of the Supreme Court within the judicial hierarchy. We begin by presenting a game-theoretic model of

The Charter Revolution and the Court Party

Abstract: Part I: Introduction The Charter Revolution The Role of Judges The Court Party Part II: Judges and the Charter Judicial Discretion Core Values Textual Innovations Original Intent, Traditional Understandings Oracularism Part III: The Court Party Unifiers Civil Libertarians Equality Seekers Social Engineers Postmaterialists The Elitism of the Court Party Part IV: The State Connection Secretary of State Funding Court Challenges Program Funding for Aboriginal Rights Litigation Academic Research Funding Legal Aid Provincial Law Foundations Part V: The Jurocracy Courts Administrative Tribunals Government Legal Departments Law Reform Commission of Canada National Judicial Institute and Western Judicial Education Centre Part VI: Power Knowledge: The Supreme Court as the Vanguard of the Intelligentsia Administrative Support Rights Experts Advocacy Scholarship Part VII: What's Wrong with the Charter Revolution and the Court Party Notes List of Cases Cited Select Bibliography Index

Ideological Divergence and Public Support for the Supreme Court

Abstract: We examine the degree to which aggregate-level support for the Supreme Court is a function of its divergence from the ideological mood of the country. We first overcome the problem of irregular and infrequent measurement of attitudes toward the Supreme Court by employing an approach developed by Stimson (1991) which allows us to pool seventeen similar survey items administered a total of ninety-three times to produce a single, semi-annual time series of support for the Supreme Court, extending from 1973 through 1993. We then consider the effect of the Court's ideological position on the level of support it enjoys. In contrast to previous research, we take into account that both the Court's and the public's ideological preferences vary over time. Our analysis indicates that the public's appraisal of the Supreme Court responds not to the Court's ideological position per se, but rather to the extent to which the Court's position diverges from the ideological preferences of the citizenry; when the Court deviates from the public mood, its support erodes. Scholars have long been interested in determining and explaining levels of public support for the Supreme Court. As a result, we know a great deal about the determinants of individual-level attitudes toward the Supreme Court (cf. Mondak and Grosskopf 1998; Caldeira and Gibson 1992; and references therein). We know less, however, about the ebb and flow of Court support over time (but see Mondak and Smithey 1997; Caldeira 1986, 1987). A major obstacle to studying the dynamics of Court support has been the infrequent and inconsistent manner in which survey organizations have queried citizens' attitudes toward the Court. Here, we offer an approach to the available data that allows us to measure support for the Supreme Court on a semi-annual basis over a twenty-year period. We then use this unique series to model Court support as a function of its divergence from the public's ideological mood. In contrast to past work, we take into account that both the Court's ideological position and the public mood vary over time and focus on the shifting divergence and convergence of the two as an explanation for changes in support for the Supreme Court.

The Supreme Court and Local Public Opinion

Abstract: people pay attention and use this information in their evaluation of the Court. The research is based on a series of two-wave panel studies that examine the effect of Supreme Court cases in the local communities where the controversies began. The results show that a substantial number of residents heard about the Court's decision and subsequently changed their evaluation of the Supreme Court, especially those who live in the immediate community. The results suggest that we need to consider other circumstances in which people hear about and care about Supreme Court decisions. R esearch on the relationship between specific Supreme Court decisions and public support for the Court has been frustrated by the apparent public ignorance of all but the most controversial and visible cases (see Caldeira 1991). In the standard account, citizens are portrayed as quite willing to offer an opinion about the institution, but they do so without knowledge of many individual decisions. Thus, many scholars conclude that support for the Court rests upon more enduring attitudes about the legitimacy of the Court in the system of government rather than on agreement or disagreement with specific decisions. Although most research suggests that the majority of Court decisions go unnoticed, the possibility that these decisions influence attitudes toward the institution is not without some support in the literature. The connection has been established in experimental research (Mondak 1991, 1992; Segal 1995) but has not been very well documented outside the laboratory. The reason is straightforward: If Court decisions are not common knowledge, by definition they can have no effect. One major obstacle is that most national surveys do a poor job of identifying conditions in which people are motivated to learn about specific Court decisions and in which they have sufficient access to information about them (but see Franklin and Kosaki 1995; Franklin, Kosaki, and Kritzer 1993; Hoekstra and Segal 1996). Consequently, we may be underestimating the importance of citizens' reactions as an element of support for the Court. One instance in which interest and access to information are likely to be high is the local communities where a controversy began. People should be more interested in cases that involve members of their own community than in cases that involve individuals or groups from somewhere else (Boninger, Berent, and

Judicial Independence: The Politics of the Supreme Court in Mexico

Abstract: This article examines the role of the Supreme Court in the development of the Mexican political system. The judiciary provided an important source of regime legitimation, as it allowed for the consolidation of a state of legality and a claim to constitutional rule of law, at least in discourse. However, the judiciary was in effect politically subordinated to the logic of dominant party rule through both specific constitutional reforms since 1917 that weakened the possibility of judicial independence and a politics of institutional and political co-optation. The constitutional reform of 1994 has significantly altered the nature of the relationship between the executive and the Supreme Court.

The myth of legality and public evaluation of the Supreme Court

Abstract: Objective. We investigate the extent to which the American people subscribe to the myth of legality-the notion that the Supreme Court's decisions are based on legal principles rather than on political influences. Methods. Using survey research, we examine the mass public's perceptions of the bases for Supreme Court decisions. We identify those perceptions that are consistent with the myth of legality and isolate the myth holders. Finally, we embed myth holding into a broader model of public evaluation of the Supreme Court. Results. We find that the myth holders are better educated, more attentive to the Court, and more favorable to the Court as an institution, even when controlling for other determinants of public evaluation of the Court. Conclusions. The myth of legality is a viable component of American political culture that assists citizens in making sense of the Supreme Court's decision-making processes

Beyond Principals and Agents Seeing Courts As Organizations By Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court

Abstract: Scholars have long recognized the importance of the European Court of Justice (ECJ) as an active court and an engine of European integration. Few, however, have peered inside the black box of the institution to look at the individuals who do the work or to analyze the ECJ as an organization. Law clerks at the ECJ, called referendaires, are drawn from the ranks of lawyers, legal academics, legal administrators, and judges. They provide valuable legal and linguistic expertise, ease the workload of their members, participate in oral and written interactions between cabinets, and provide continuity as members rapidly change. Although they have more power than their counterparts in the United States Supreme Court, they are not the puppeteers of the members, but their agents. Focusing on the purported unchecked power of clerks distracts us from examining the important institutional consequences of changes in workload or an expansion of members.

Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making

Abstract: This is the first comprehensive analysis of how the collective nature of Supreme Court decision making affects the transformation of the justices' preferences into constitutional doctrine. Analyzing the Supreme Court from the perspective of social choice theory, Maxwell L. Stearns offers new insights into Supreme Court decision making that have profound implications for understanding the outcomes in a number of cases and the resulting doctrinal development within constitutional law which traditional analyses have proven ill-equipped to explain. The book models several important process-based Supreme Court rules, including outcome voting, the narrowest-grounds rule, stare decisis, and justiciability, with a particular emphasis on standing. These doctrines have each had a significant impact upon the evolution of modern constitutional law, including but not limited to the following areas: affirmative action, school desegregation, racial gerrymandering, obscenity, and abortion. Each model is presented in nontechnical language with several concrete illustrations drawn from recent Supreme Court case law. The book offers a new understanding of two apparently paradoxical situations: first, cases in which there are separate majorities on specific issues in the case that suggest, logically, that there should be a majority for the dissenting result; and second, cases in which discrete minorities--as opposed to the apparent majority--control the identification and resolution of dispositive case issues. In addition, the book sheds new light on why the Court employs stare decisis, even though the doctrine grounds the evolution of legal doctrine on the order in which cases are presented and decided, and on how the modern standing doctrine ameliorates the incentives for interest groups to time the litigation of cases in a way that will exert a disproportionate influence over the direction of constitutional doctrine. This book will appeal to scholars of the Supreme Court or judicial decision-making. It should also be of interest to students of social choice and of law and economics who have not previously considered the Supreme Court or constitutional law as fertile ground for their disciplines. Maxwell L. Stearns is Professor of Law, George Mason University School of Law.

The Rules of Procedure and Evidence of the International Criminal Court

Abstract: On 30 June 2000, the Preparatory Commission for the International Criminal Court approved by consensus the Draft Rules of Procedure and Evidence (hereinafter ‘the Rules’). Their adoption followed months of extensive negotiations during which delegations struggled to supplement the Rome Statute of the International Criminal Court (hereinafter, ICC or the Court) while fulfilling the — sometimes somewhat contradictory — objectives of safeguarding the integrity of the Statute and ‘enhancing the effectiveness and acceptance of the Court’.

Restoring What's Environmental About Environmental Law in the Supreme Court

Abstract: In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades The article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices The article's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law The Justices have instead tended to view environmental protection as merely an incidental factual context for the presentation of legal issues that share no unique environmental dimension Professor Lazarus posits that this view of environmental law is misguided and that it has resulted in poorer Court decisions Missing from the Court's analysis has been sufficient emphasis on the nature and normative weightiness of environmental protection concerns and their import both for judicial construction of relevant legal rules and the Court's understanding of the workings of relevant lawmaking institutions Finally, the article describes how the 'environmental' dimension to environmental law might be restored to the nation's highest Court This discussion includes a description of how the ecological character of the problem addressed by environmental law affects legal doctrine and lawmaking institutions and how current and future Justices might be made better aware of that relationship

The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics

Abstract: This paper takes a somewhat novel approach to problems regarding the separation of law and politics raised by Roosevelt's Court-packing plan. Most scholarship about the New Deal focuses on the Court's response to the threat of political retribution that the plan represented. This article argues that if one is concerned about questions regarding the separation of law and politics raised by the Court's doctrinal change following the defeat of the Court-packing plan, it is more profitable to examine public reaction to the Court, rather than the more common scholarly approach of examining the Court's reaction to political pressure. Thus, this paper is a study of popular understandings about democracy, judicial supremacy, constitutional interpretation and the role of judicial review in the 1930's. The thesis of the article is that these deeper strains in public thought at the time of the New Deal can explain why the Court-packing plan was a logical proposal, as well as why it was defeated. Public understandings about the proper role of judicial review also mirror the doctrinal direction taken by the Court beginning in 1937, suggesting at the least that there is some "empirical legitimacy" to the Court's change in direction.

The Law of Affirmative Action: Twenty Five Years of Supreme Court Decisions on Race and Remedies

Abstract: The debate over race in this country has of late converged on the contentious issue of affirmative action. Although the Supreme Court once supported the concept of racial affirmative action, in recent years a majority of the Court has consistently opposed various affirmative action programs. The Law of Affirmative Action provides a comprehensive chronicle of the evolution of the Supreme Court's involvement with the racial affirmative action issue over the last quarter century. Starting with the 1974 DeFunis v. Odegaard decision and the 1978 Bakke decision, which marked the beginnings of the Court's entanglement with affirmative action, Girardeau Spann examines every major Supreme Court affirmative action decision, showing how the controversy the Court initially left unresolved in DeFunis has persisted through the Court's 1998-99 term. Including nearly thirty principal cases, covering equal protection, voting rights, Title VII, and education, The Law of Affirmative Action is the only work to treat the Court decisions on racial affirmative action so closely, tracing the votes of each justice who has participated in the decisions. Indispensable for students and scholars, this timely volume elucidates reasons for the 180 degree turn in opinion on an issue so central to the debate on race in America today.

The Rehnquist Court and the Constitution

Abstract: In The Rehnquist Court and the Constitution, Tinsley Yarbrough provides a comprehensive look at today's Supreme Court Justices and their record-a study all the more valuable for the Court's mixed decisions and hard-to-categorize course. An accomplished biographer, Yarbrough offers incisive portraits of the nine who now sit on the high bench, and tellingly reviews their nomination hearings. He also explores the workings of the Court, ranging from the selection and role of the clerks to the work load (including the end-of-term "June crunch") and assignment of opinions. But the heart of the book is a systematic exploration of the Court's record in such fields as government power, economic regulation, and criminal justice. In decision after decision, the author discusses the various justices' opinions, arguments, and legal theories; he also offers his own analysis (including a sharp critique of the decision to allow the Paula Jones lawsuit to move forward). Like many writers on the Rehnquist Court, Yarbrough finds a general continuity with the past, shaded by a conservative outlook (especially in matters of criminal justice and affirmative action), but he identifies a significant departure in its rulings on economic regulation. Since 1937, he writes, the Supreme Court had generally adopted an expansive view of federal power over economic matters; the Rehnquist Court has reversed that trend. The Rehnquist Court has not launched an all-out assault on the Warren Court's precedents, as many conservatives hoped, but as Yarbrough shows it has embarked on important new departures. Thoughtful, wide-ranging, intelligently written, this book will stand as the finest study of the Rehnquist Court for years to come.

The Role Of The Supreme Court In American Politics: The Least Dangerous Branch?

Abstract: When the Supreme Court's effectively decided the presidential election of 2000, it decision illustrated a classic question in American politics: what is the appropriate role for the Supreme Court? The dilemma is between judicial activism, the Court's willingness to make significant changes in public policy, and judicial restraint, the Court's willingness to confine the use and extent of its power. While the Framers of the Constitution felt that the judiciary would be the "least dangerous branch" of government, many have come to the conclusion that courts govern America, a notion at odds with democratic government.Richard Pacelle traces the historical ebb and flow of the Court's role in the critical issues of American politics: slavery, free speech, religion, abortion, and affirmative action. Pacelle examines the arguments for judicial restraint, including that unelected judges making policy runs against democratic principles, and the arguments for judicial activism, including the important role the court has played as a protector of minority rights. Pacelle suggests that there needs to be a balance between judicial activism and restraint in light of the constraints on the institution and its power. Stimulating and sure to generate discussion, The Supreme Court in American Politics is a concise supplemental text for American Government and Judicial Politics course.

Correlates of Accuracy and Inaccuracy in the Perception of the Climate of Opinion for Four Environmental Issues

Abstract: This study examines some of the psychological and social structural correlates of accuracy and inaccuracy in assessments of the climate of opinion about environmental problems using data from a telephone survey of 1,002 adults. News media use, news media influence, and information seeking were associated consistently with accurate assessments of the majority opinion. Situational theory's problem and constraint recognition were associated with accurate estimates of the climate of opinion and provided a means of determining whether or not respondents were actually accurate or were simply projecting their own opinions to the majority. Interpersonal discussions and environmental concern were associated with inaccurate assessments of majority opinion.

The supreme court and the protection of minority rights: An empirical examination of racial discrimination cases

Abstract: This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianismdecisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes. Introduction The assessment of the determinants of U.S. Supreme Court decisionmaking remains an intensely controversial aspect of judicial studies. Advocates of several broad approaches continue to debate which is the principal impetus of outcomes both in general and in specific legal fields.1 My inquiry offers one perspective to help untangle this controversy in the domain of racial discrimination cases in the post-Brown v. Board of Education (1954) period. Although the findings will not end the long-standing debate over what determines decisional outcomes, they do provide a clarified picture of the racial discrimination subfield and a suggestion for studying other specialized areas. My basic approach and specific research design are premised on the assertion that a clear understanding of decisionmaking is obscured by previous studies (both general and particularized) that tend to inflate the influence of majority preferences (thus discrediting institutionalism to an unwarranted extent) and also fail to provide a full account by focusing only on two competing explanations at a time. The strategy for systematically interpreting outcomes in this area rests on two novel tactics. The first tactic is to expand consideration of the potential role played by majority opinion. (I furnish a complete description and justification of this approach later.) This tactic offers an improved test of the majoritarian thesis. The second approach of this inquiry allows for the explication of three potential determinants of decisionsthe rules and structure of the institution itself, majority public preference, and the ideological predilections of the Justices. It thus provides a core comparison of these broad categories rather bluntly defined, as opposed to an exhaustive assessment of all potentially meaningful determinants. Since such a basic measure of outcomes in this field has yet to be undertaken, however, this is a necessary first step. The results of this investigation of constitutional challenges to racial discrimination suggest that even though the Supreme Court is insulated from majority preferences, its decisions are influenced by Justices' ideological leanings. More specifically, although white Americans (who in this area represent the majority, as opposed to the African American minority) are much more amenable to government action designed to end blatantly discriminatory laws and practices (de jure discrimination) than to the eradication of entrenched patterns of inequity (de facto discrimination), this distinction is not reflected in the decision record. Whether a case represents a challenge to de jure or de facto discrimination does not significantly influence its outcome. Furthermore, fluctuations in the general ideological temper of the nation also fail to affect rulings. However, although distancing itself from majority influences, the Court is not consistently protective of minority rights. The ideological composition of the Court displays a significant influence on verdicts; thus, when the Court is relatively more conservative, cases are less likely to be decided in the minority interest. …

The do's and don'ts in court interpreting: a functional approach to aprofessional code

Abstract: Recent observations of criminal trials still disclose, albeit in some cases only, inconsistencies, irregularities and many sorts of court interpreter misdemeanours. Instances of inaccuracy, lack of proficiency and general incompetence pervade the service. The misunderstanding of the role of the court interpreter by the practitioners themselves, the other court personnel, as well as accused persons and witnesses is the main reason for the inefficient service. State intervention is long overdue. This article, therefore, proposes suggestions in the development of a code of professional conduct for the service of court interpreting in South Africa. The author has examined various codes used by established court interpreter associations far and wide as invaluable sources of reference. The co-operation of several experienced senior court interpreters, to whom I am indebted, as well as the discussions with some of the students registered for the BA degree in Court Interpreting at Unisa has also been inv...

Scholars and Judges: Reason and Power

Abstract: The just qadi (judge) will be brought on the Judgment Day, and confronted with such a harsh accounting that he will wish that he had never judged between any two, even as to a single date.(1) Judges are three: two in Fire, and one in Paradise. A man who has knowledge, and judges by what he knows -- he is in Paradise. A man who is ignorant, and judges according to his ignorance -- he is in the Fire. A man who has knowledge, and judges by something other than his knowledge -- he is in the Fire.(2) Last Fall I heard a news broadcast that the Massachusetts Supreme Judicial Court would that day hear argument in a suit by a man against his ex-wife to prevent her from having implanted in her frozen embryos created by them both while they were still married.(3) I remember my first, unreflecting reaction. It was as if scientists were nearing the carbon dating of a strange fossil, and so would settle once and for all the puzzle of dinosaur extinction. Then I realized how strange was my reflex. Just months before, I had been a member of that court, and if the case had come up earlier I might have been struggling to decide it with no more wisdom or knowledge than I had when I heard that broadcast. My instinctive reaction finds reflection in the pervasive near reverence with which the public and the profession treats judges and their opinions. Judicial opinions are not quite the exclusive diet of scholars and law teachers that they used to be, but we still teach much of the law out of case books excerpting judicial opinions. Legal scholarship is still largely about judicial opinions. Theories about what the law is -- the legal realists notwithstanding -- are still mainly about what judicial opinions have said about the law. Nowhere is this truer than in constitutional law. Constitutional theories are constructed based on the most exquisite parsing of judicial opinions, a task made more intricate by the proliferation of cases in which there is no opinion of the court so that scholars offer Venn diagram-like analyses to arrive at the maximum common content of separate opinions. Constitutional law is a text-based subject only in the sense that antitrust law is text-based. Antitrust law depends basically on three rather terse statutory provisions -- sections 1 and 2 of the Sherman Act(4) and section 12 of the Clayton Act;(5) yet, Professor Areeda's authoritative treatise has attained eleven volumes and is not yet complete.(6) Similarly, the text of the Constitution consists of some 68 sections and fills about fifteen pages in a standard constitutional law case book, yet there are now well over 500 volumes of Supreme Court cases, a large part of which deal with constitutional issues and announce constitutional law. Professor Tribe's constitutional law treatise, now in its third edition, runs over 1300 pages of small type in the first volume alone.(7) Clearly, constitutional law is judge-made law. It is not only judge-made law, but its main lines are set out by one court, the Supreme Court. Thus, it is on that Court that I focus in this Essay. In this respect, constitutional law resembles the English common law of contract or tort.(8) There are, however, these differences: Rules of constitutional law are generally about far more fundamental matters than any particular rule of tort or contract law, and legislatures cannot override these constitutional rules without amending the Constitution. So it is no surprise that the Supreme Court is held in such awe -- power has that effect -- but it is also true that the Court from the beginning has conducted itself with a degree of circumspection, dignity, and conscientiousness that has enhanced this natural tendency to venerate power, while giving little ground for the equal and opposite tendency first to gossip about and then to deprecate any institution or person who is the subject of official veneration. Perhaps no institution of our government does its work at once so discretely and so openly. …

On the Evolution of the Canonical Dissent

Abstract: Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions-e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson -- that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations. Specifically, the Article argues that the canonization of dissenting opinions began as a New Deal phenomenon-linked to the public rejection of the Old Court's economic rights jurisprudence, as embodied in the majority opinion in Lochner v. New York. The canonization of Holmes's Lochner dissent, it is shown, was a product both of progressive intellectuals eager to usher in the New Deal, and of a judicial desire to memorialize the popular repudiation of the Old Court's philosophy. Other early canonizations of dissent followed the Lochner pattern, emerging only as responses to popular rejections of old precedents. But as time wore on, the Court began developing a new kind of canonization, whereby justices consciously lifted and adopted principles articulated in dissenting opinions of yore as authority for the formulation of new constitutional rights and rules. Several civil liberties dissents (involving, inter alia, First and Fourth Amendment rights) thus became canonized even before the majority opinions which they criticized had been overruled. The Article ends with a look at what the evolution of the dissenting canon teaches about the shape of the constitutional canon as a whole-noting, for instance, the central role that political conflict plays in the creation and elevation of canonical texts.

The United States Supreme Court's Volitional Agendas, 1801-1993: Historical Claims versus Empirical Findings

Abstract: In this study, I examined the Supreme Court's agenda from 1801 to 1993 to determine the composition and dynamics of the issues that have dominated the business of the Court. Specifically, I set out to test empirically Robert G. McCloskey's (now standard) characterization of the Supreme Court's history, which sees it as dominated by nationalism/federalism issues before the Civil War, by economic issues just after the War through the 1930s, and by civil rights and liberties since the 1930s. The question that drove my investigation was "Is McCloskey's interpretation, which appears to be based on the great cases of Supreme Court history, an accurate description of the agenda represented in the Supreme Court's total body of reported decisions?" To test McCloskey's historical theses I employed concepts adapted from Richard Pacelle's (1991) important work on the agenda of post-Roosevelt Court and used the methods of classical historical analysis and of interrupted time-series analysis. Data for my research came from existing datasets and from my own collection (I coded the manifest content of thousands of Supreme Court's decisions from 1887 back to 1801). The most important finding from my analyses is that McCloskey not withstanding, the pre-Civil War Supreme Court's agenda was clearly dominated by economic issues of various sorts, not by nationalism/federalism as previously believed. Another key finding is that partisanship had a pronounced impact on the Court's attention to this category of issueseven in the periods when the Supreme Court had very little control of its docket. These results suggest that Supreme Court scholars should reassess or rethink their previous notion of the Court's pre-Civil War agendathe now well-established view that nation-state issues dominated the business of the Court in its formative yearsand the idea (often expressed implicitly) that the Court's mandatory jurisdiction suppressed attitudinal factors on the Court in the earlier eras.

The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment

Abstract: This article, analyzing debates in Congress and Supreme Court opinions and briefs between 1868 and 1880, proposes to overturn more than a century of conventional wisdom regarding the early understanding on whether the Fourteenth Amendment "incorporates" the Bill of Rights and applies it to the states. The prevailing orthodox view is that Justice Miller's 5-4 majority opinion in the Slaughter-House Cases (1873) rejected incorporation and gutted the Fourteenth Amendment Privileges and Immunities Clause. But in books published in 1953 and 1980, William Winslow Crosskey and John Hart Ely suggested that both the majority and dissenting justices in Slaughter-House may in fact have supported incorporation. Robert Palmer developed this idea in a 1984 article, as did Kevin Newsom in a 2000 article published shortly before the present article.This article builds in part on Crosskey, Ely, Palmer, and Newsom, and argues that total incorporation via the Privileges and Immunities Clause may indeed have been a minimum view (a potential compromise) accepted by all the justices in Slaughter-House. The article, however, has a considerably broader scope. It analyzes key source materials only lightly explored (if at all) by earlier scholars, most notably critical debates in Congress in 1873-74 and 1876. It disagrees with Newsom's analysis of post-Slaughter-House cases, and is the first work to consider in depth, in this regard, the contemporary briefs and arguments before the Court. That resource has rarely been explored in previous scholarship in this area, and produces surprising findings, including that incorporation was favorably discussed (and virtually unchallenged by any party) in the Slaughter-House briefs, and that the issue was not even properly before the Court in United States v. Cruikshank and Walker v. Sauvinet, key 1876 decisions which undermined the theory.The 1873-74 debates in Congress reveal that the Slaughter-House Cases were read in an incorporationist light by lawyer-politicians across the political spectrum - including, indeed especially, by the most conservative, anti-Reconstruction Southern Democrats. Indeed, the notion that the Fourteenth Amendment at least applies all textual Bill of Rights guarantees to the states appears to have briefly emerged as a baseline consensus during the early 1870s. But in a series of cases in the mid-to-late 1870s - including Edwards v. Elliott (1874), Cruikshank and Walker in 1876, and additional decisions in 1878 and 1880 - the Supreme Court seemed to abandon the incorporation theory. This article explores the previously unrecognized degree of discontinuity, poor or nonexistent reasoning, and outright procedural impropriety in these cases. The article also speculates about what might have caused the incorporation compromise to become lost, and concludes by suggesting that its historical insights should place the incorporation theory on a stronger foundation in the modern Court, which signalled in Saenz v. Roe (1999) a willingness to reexamine the Fourteenth Amendment Privileges and Immunities Clause.A sequel to this article, "The Road to Twining: Reassessing the Disincorporation of the Bill of Rights," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), pursues the treatment of the incorporation theory by the Supreme Court from 1880 to 1908. Additional articles by Professor Wildenthal discuss the original understanding with regard to incorporation during the period from 1866 to 1873. See "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007) (available at http://ssrn.com/abstract=963487); "Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873," 18 J. Contemp. Legal Issues 153 (2009) (available at http://ssrn.com/abstract=1354404).

The Road to Bush v. Gore: The History of the Supreme Court’s Use of the Per Curiam Opinion

Abstract: The Supreme Court per curiam opinion, which proclaims itself the collaborative product of all the Justices in supporting an outcome, was first used in 1862 as an efficient way of resolving such routine matters as dismissals for lack of jurisdiction and motion decisions. Starting in the 1930s, as the Roosevelt Court Justices increasingly exercised their prerogative to author dissenting and concurring opinions, even per curiams started to appear with dissents attached. Thereafter the Court began experimenting with the per curiam as a useful form for some of its more challenging cases, including such major decisions as Ex Parte Quirin and the desegregation decisions that applied Brown v. Board of Education to other settings. More recently, the Court has used the per curiam as an effective way to deal with a change of authorship in Brandenburg v. Ohio, a need for haste in New York Times Co. v. United States, and a strongly splintered Court in Furman v. Georgia. The release of a 138 page per curiam in Buckley v. Valeo in 1976 completed its transformation from an indicator of an unimportant case to a strategic device capable of resolving a complicated and divisive issue. The per curiam made its most dramatic appearance in Bush v. Palm Beach County Canvassing Board, where the Court employed it to depersonalize its response to the Florida Supreme Court's controversial decision and to present itself as an institution above politics and personal preference.