Showing papers on "Majority opinion published in 2004"

From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality

Abstract: Do Supreme Court decisions matter? In 1896 the United States Supreme Court ruled in Plessy v. Ferguson that railroad segregation laws were permissible under the Fourteenth Amendment. In 1954 the Court's decision in Brown v. the Board of Education held that the same constitutional provision invalidated statutes segregating public schools How great an impact did judicial rulings such as Plessy and Brown have? How much did such Court decisions influence the larger world of race relations? In From Jim Crow to Civil Rights, Michael J. Klarman examines the social and political impact of the Supreme Court's decisions involving race relations from Plessy, the Progressive Era, and the Interwar Period to World Wars I and II, Brown and the Civil Rights Movement. He explores the wide variety of consequences that Brown may have had--raising the salience of race issues, educating opinion, mobilizing supporters, energizing opponents of racial change. He concludes that Brown was ultimately more important for mobilizing southern white opposition to racial change than for encouraging direct-action protest. The decision created concrete occasions for violent confrontation--court ordered school desegregation and radicalized southern politics, leading to the election of politicians who calculated that violent suppression of civil rights demonstrations would win votes. It was such violence--vividly captured on television--that ultimately transformed northern opinion on race, leading to the enactment of landmark civil rights legislation in the mid 1960s. A fascinating investigation of the Supreme Court's rulings on race, From Jim Crow to Civil Rights, spells out in exhaustive detail the political and social context against which the Supreme Court Justices operate and the consequences of those decisions on the civil rights movement and beyond.

The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences

Abstract: With competing assumptions and alternative empirical models, scholars have come to rather different conclusions about the impact of public preferences on the decisions of the U.S. Supreme Court. Some have found the justices to be attentive to mass opinion, while others have judged it to be irrelevant. Across this divide, however, one assumption is widely shared; that is, political scientists generally agree upon how best to measure the Court's outputs. In this analysis, we employ an alternative estimate of the justices’ liberalism, one which we think better reflects the underlying ideological tenor of their policies. With data from 1953 to 1996, we compare time-series models using different indicators of the Supreme Court's aggregate liberalism. Our results suggest that, in addition to being motivated by their own preferences, the justices are highly responsive to public mood, as well.

Silent Voices: Public Opinion and Political Participation in America

Abstract: FIGURES ix TABLES xi ACKNOWLEDGMENTS xiii INTRODUCTION Representation, Public Opinion, and the Voice of the People 1 ONE Opinion Polling and the Silencing of Political Voice 14 TWO The Search for the Voice of the People: Considering the Unspoken 36 THREE The Dynamics of Racial Policy Opinion, 1972-1994 51 FOUR Social Welfare Policy and Public Opinion, 1972-1996 84 FIVE The Changing Context of Public Opinion Concerning the Vietnam War, 1964-1972 105 CONCLUSION Public Opinion and Political Voice 127 APPENDIX TO CHAPTER 3 145 APPENDIX TO CHAPTER 4 169 APPENDIX TO CHAPTER 5 176 REFERNECES 185 INDEX 195

Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Abstract: Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts.

The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court Decisionmaking

Abstract: This Essay reports the results of an interdisciplinary project comparing political science and legal approaches to forecasting Supreme Court decisions. For every argued case during the 2002 Term, we obtained predictions of the outcome prior to oral argument using two methods—one a statistical model that relies on general case characteristics, and the other a set of independent predictions by legal specialists. The basic result is that the statistical model did better than the legal experts in forecasting the outcomes of the Term’s cases: The model predicted 75% of the Court’s affirm/reverse results correctly, while the experts collectively got 59.1% right. These results are notable, given that the statistical model disregards information about the specific law or facts of the cases. The model’s relative success was due in large part to its ability to predict more accurately the important votes of the moderate Justices (Kennedy and O’Connor) at the center of the current Court. The legal experts, by contrast, did best at predicting the votes of the more ideologically extreme Justices, but had difficulty predicting the centrist Justices. The relative success of the two methods also varied by issue area, with the statistical model doing particularly well in forecasting “economic activity” cases, while the experts did comparatively better in the “judicial power” cases. In addition to reporting the results in detail, the Essay explains the differing methods

The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

Abstract: When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism. Ranging from 1937 to the present, "The Most Activist Supreme Court in History" traces the legal and political forces that have shaped the modern Court. Thomas M. Keck argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. Keck focuses in particular on the role of Justices O'Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.

The Median Justice on the United States Supreme Court

Abstract: Black's \"Median Voter Theorem\" now figures prominently and crucially in a wide array of research on the United States Supreme Court, from studies on the nomination and confirmation of Justices, to investigations into the Court's resolution of disputes, to analyses of its impact on the hierarchy of justice. Nonetheless, and regardless of the substantive focus of the investigation, the question of how to locate the median Justice looms large. Because all extant answers have their share of problems, we set out to develop a more compelling approach-one that relies on methods developed by Martin and Quinn. Via this approach we derive a systematic accounting of the Justice with the highest (posterior) probability of having served as the median for each Term since 1937.

Peer and Social Influence on Opinion Expression Combining the Theories of Planned Behavior and the Spiral of Silence

Abstract: This study uses the theory of planned behavior and spiral of silence to explore the role of peer and social influence on communicative acts related to drinking behavior. Consistent with the theory of planned behavior, results of the study suggest that a person’s own attitudes and sense of self-efficacy are important influences on willingness to communicate about drinking. Peer influence and, to a lesser extent, perceptions of majority attitudes were associated with willingness to voice an opinion. Only limited evidence of an association between media use and attention and beliefs about efficacy and majority opinion was found. Discussion centers on the possibility of incorporating concepts derived from the theory of planned behavior into the spiral of silence framework. Implications of these findings for future public service interventions also are discussed.

The Institutionalization of the U.S. Supreme Court

Abstract: In pursuing their goals, members of the U.S. Supreme Court are affected by their institutional setting. How has that institutional environment changed over time and what have been the political consequences of those changes? Despite considerable analysis of the institutional dynamics of legislatures and executives, political scientists have been slow to bring time series techniques to the study of the Supreme Court, and as a result much less is known about its evolutionary path. Measuring a variety of organizational characteristics, I construct an index of the institutionalization of the Supreme Court from 1790 to 1996. This indicator suggests that the integration of the Court into the system of federal policy making has better enabled the justices to satisfy their objectives. To demonstrate this empirically, I test a series of error correction models of judicial influence, each of which confirms that the nature of the Supreme Court’s character has had considerable implications for the scope of the justices’ legal and political impact. These results underscore the need for judicial scholars to examine the Court’s policy making in longitudinal perspective.

Changing Attitudes to Punishment: Public Opinion, Crime, and Justice:

Abstract: decades. On the other hand, the sophisticated academic debate taking place in Germany regarding the determination of the legal maturity and criminal responsibility of young people points to the fact that it is not only in respect of simple age limits that British youth justice laws remain punitive and retarded. As British antisocial behavior enforcement action now contemplates the preemptive criminalization of 8-year-olds, it is reassuring that we have access to alternative European legal cultures in which a sociologically and psychologically informed and developmental approach to young people's citizenship is at least entertained by academics. It does provide a standard to which we can aspire.

Information Provision, Organizational Constraints, and the Decision to Submit an Amicus Curiae Brief in a U.S. Supreme Court Case

Abstract: How do organized interests select the Supreme Court cases in which to file amicus curiae briefs? Starting with the assumption that organized interests pursue policy influence, I argue that an organized interest will submit amicus curiae briefs in the cases that provide the greatest opportunity for the interest to influence the content of the majority opinion. Membership-based interests, however, will also have to consider the effect of their case-selection decisions on their ability to attract and retain membership support. I test my hypotheses with data on a large sample of organized interests and their amicus curiae brief filings in the 1991-1995 Supreme Court terms. The results of this analysis provide support for my hypotheses and indicate that organized interests seek out cases in which the justices are relatively information-poor. Membership-based interests also choose cases that allow for visible and apparently “successful” participation.

The Rehnquist Court and the Political Dynamics of Federalism

Abstract: The Rehnquist Court's federalism decisions have sparked contentious debate about the role of the Court in the American political system. This article examines the reasons behind the Court's revival of federalism and the controversy it has produced. The first part reviews the normative jurisprudential debate over the Court's role as it has been cast in the legal academy. In the second part, we turn to an historical-empirical, or “political regimes,” framework for understanding the role of the Supreme Court. Although this framework provides a better explanation of the Rehnquist Court's foray into federalism, the connections between this approach and normative jurisprudential debates remain important, and we explore them in the final section. The Court's recent jurisprudence on federalism reflects both consensus and division within the current political regime—consensus that federalism is an important value, but division over how best to protect that value. We argue that competing jurisprudential theories over the role of the Court illustrate these political divisions. Thus, this article highlights the special insights political scientists bring to the subject, but also demonstrates how the two approaches can be usefully combined to provide a more robust understanding of the Court's role in the American political system.The authors thank Richard Brisbin, John Dinan, Mark Graber, Ashley Grosse, Jennifer Hochschild, Tom Keck, David O'Brien, Bob Turner, and the anonymous reviewers for their comments and suggestions along the way.

Oral Arguments and Decision Making on the United States Supreme Court

Abstract: Few scholars have found systematic evidence that oral arguments play a significant role in the decision making of the U.S. Supreme Court. Studies of the solicitor general and other experienced lawyers find significant effects from advocacy in the Court, but for the most part it seems not to play a major role in determining how policies are made by the justices. One reason, suggests Timothy Johnson, is that we have been looking in the wrong place. Instead of testing for the impact of advocacy on case outcomes or written opinions, Johnson’s book argues that we should see oral argument, not as an opportunity for attorneys to influence the justices, but rather as a tool that the members of the Court can exploit in order to maximize their preferred goals. Aware of the need to build coalitions internally and to avoid confrontations with external actors, the justices strategically employ arguments to extract information, to develop legal and policy issues for conference discussion, and ultimately to help form majorities and inform their written opinions. It is a cogently argued and well-researched book that deserves serious attention from those who want to understand the role of strategic decision making on a collegial court.

The Effect of Politically Salient Decisions on the U.S. Supreme Court's Agenda

Abstract: The U.S. Supreme Court is widely recognized as setting its agenda by choosing to hear certain cases and refusing to hear others. But what influence, if any, does the Court have on the types of cases that are appealed to it? The Court has no formal power to solicit cases, but I contend that potential litigants interpret politically salient Court decisions as signals of its willingness to hear additional cases in certain policy areas. When this happens, the Court receives additional well-framed cases that allow it to make policy in those areas. The theoretical implications are twofold: (1) by signaling the litigant community to support litigation in certain policy areas, the Supreme Court can bring cases onto its agenda well before the certiorari process begins, and (2) the Supreme Court is dependent on extrajudicial actors and their resources to make comprehensive policy.

The dynamics of minority opinions in democratic debate

Abstract: A model for the dynamics of opinion forming in democratic public debate is presented. Using concepts and techniques from the physics of disorder the dynamics of social refusal spreading is studied within a perfect world, where the minority holds neither better arguments nor lobbying backing. The one-person-one-vote rule, together with local majority rules, are used to determine the outcome of local group discussions. In case of a local tie, the group decides on keeping the Status Quo. The geometry of social life shaped by offices, houses, bars, and restaurants is shown to determine the distribution size of these discussion groups. It is found to yield very asymmetric unstable thresholds to the total spreading of one opinion at the benefit of the refusal one. The associated dynamics is rather quick and completed within few days. This democratic paradox of public debate driven majority opinion reversal is discussed in light of some European construction issues. The model may apply to rumor and fear propagation.

A Conditional Model of Opinion Assignment on the Supreme Court

Abstract: The chief justice’s power to assign the majority opinion on the U.S. Supreme Court provides an indispensable agenda-setting tool for the chief. Scholars disagree, however, on what factors guide the chief’s use of his assignment powers. Some suggest that the chief assigns cases with an eye to securing his ideological goals, while others contend that the chief prefers to ensure the efficient and harmonious operation of the Court. Rather than assuming that the chief is a single-minder seeker of either ideology or efficiency, we explore the possibility that the chief is motivated by multiple goals. In particular, we evaluate the effects of policy goals and organizational needs on the chief’s assignment decisions, and specify the conditions under which different goals appear to be paramount to the chief. Using a random-effects probit model, we examine the assignment decisions of Chief Justices Earl Warren, Warren Burger, and William Rehnquist between the 1953 and 1990 terms, and find support for a conditional ...

Lobbying Strategies, Venue Selection, and Organized Interest Involvement at the U.S. Supreme Court:

Abstract: When and why will organized interests choose to lobby the U.S. Supreme Court by submitting amicus curiae briefs? This article argues that organized interests are most likely to lobby the Court when conditions increase their expectation of influencing the Court’s policy outputs. However, when deciding which policy venue to lobby, organized interests that rely on membership support will also have to consider the effect of their lobbying decisions on their ability to attract and retain members. Analysis of the amicus curiae brief filings of 579 organized interests suggests that an interest is more likely to submit amicus briefs at the Supreme Court when the Court is receptive to the positions advocated by the interest and the interest has participated at the Court in the past. The results also indicate that membership-based groups will take into account the extent to which relevant cases have been covered by the media when choosing whether to lobby the Court.

Public Reaction to Supreme Court Decisions

Abstract: Public Reaction to Supreme Court Decisions.

Hail to the Chief! Leadership and Structural Change in the Level of Consensus on the High Court of Australia

Abstract: This article identifies structural breaks in dissenting and single opinions on the High Court of Australia and uses a recent method proposed by Caporale and Grier (2002) to examine the effect of leadership on variations in the dissent rate between 1904 and 2001. Although there has been much speculation about the effectiveness of different Chief Justices in obtaining consensus on the Court, to this point most of the evidence has been anecdotal. Our main findings are that the structural breaks that we identify coincide with major turning points in the leadership of the Court and that leadership has been important in explaining variations in the proportion of dissenting opinions on the Court.

I Respectfully Dissent: Consensus, Agendas, and Policymaking on the U.S. Supreme Court, 1888–1999

Abstract: Scholars have been intrigued by the abrupt change in the rate of nonconsensual opinions that the Supreme Court has published over time, which substantially increased beginning with the battles concerning the court's New Deal transition in the 1930s. Notwithstanding, none of the prior studies on this topic has made any link, whether theoretical or empirical, between the Supreme Court's issuance of these special opinions and the justices’ policy preferences. We utilize fractional cointegration to examine the relationship between consensus, agendas, and decisionmaking on the Supreme Court. We find that there is a systematic interrelation between the justices’ policy preferences and their issuance of nonconsensual opinions that is dependent upon the policy agenda before the court. In turn, this connection influences the court's policy outcomes, demonstrating that the justices’ behavior regarding nonconsensual opinion writing is a classic example of judicial policymaking.

A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001

Abstract: Empirical research into judicial decision-making of a court provides insights into the court's operation, and an analysis of the decisions of the High Court delivered from 1903 to 2001 has revealed clear trends. The length of reasons for decisions of the Court has increased from the beginning of the 1990s and peaked in the mid-to-late 1990s, and the level of joint, concurring and dissenting opinions have fluctuated over time and shown no clear trend.

The permeability of constitutional borders

Abstract: [T]he science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns . . . . I. Introduction: Transnational Jurisprudence and the Challenge to Comparative Constitutional Theory "[I]rrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."2 These words of Justice Antonin Scalia are hardly reassuring to those of us who study and write about some of these practices, believing perhaps that the justice and his colleagues might benefit in some small way from what we have learned from our travels and reflection. To be sure, the fact that Justice Scalia's sentiment was voiced in the course of questioning the appropriateness of another Justice's invocation of foreign experience suggests that there may actually be some judicial receptivity to comparative insights and findings. But that only begs the question of why there should be. The question came up again on the last day of the 2002 Supreme Court term when, in his opinion for the Court striking down a Texas homosexual sodomy statute, Justice Anthony Kennedy cited several decisions of the European Court of Human Rights in support of the majority's holding in the case.3 "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."4 In response, Justice Scalia dismissed "[t]he Court's discussion of these foreign views" as "meaningless," but "[d]angerous dicta,"5 repeating the now familiar refrain that "this Court. . . should not impose foreign moods, fads, or fashions on Americans."6 Given the momentousness of the legal change wrought by the decision, this exchange received only a passing glance in the extensive commentary immediately following its announcement. It has since received more attention; Robert Bork, for example, has cited the references to foreign sources in Lawrence v. Texas (along with Grutter v. Bollinger)7 as episodes in an "absurd turn in our jurisprudence" that reflects the arrogance of power of the modern judiciary.8 "[E]ven Scalia at his gloomiest probably did not foresee [how a new Constitution] might be designed bit by bit from European, Asian, and African models."9 In a recent book, he connects this jurisprudential turn with one of his longstanding concerns, "the transnational culture war."10 Along similar lines, Ken Kersch discovered in the "seemingly benign references" to foreign sources "a vast and ongoing intellectual project," part of a "sophisticated effort to transform American constitutional law and its interpretation."" As a result, "[e]ventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered."12 These reactions may very well exaggerate the influence of external sources in the outcomes of these cases, and arguably they overstate the broader jurisprudential significance of the infusion from abroad. They do, however, address an important issue concerning the role of constitutional theory in comparative law. The specific problem that concerns me is suggested in Justice Scalia's objection to the judicial deployment of comparative examples by the Court in overturning the controversial ruling in Bowers v. Hardwick.13 That case withheld the status of the fundamental right to consensual sexual relations between homosexuals (as well as others who perform acts of sodomy in their intimate associations) on the ground that the behavior in question was not "deeply rooted in this Nation's history and tradition."14 This provoked Justice Scalia to underscore the words "this Nation's" and to observe that the Bowers majority opinion, contrary to the implication in Justice Kennedy's opinion, had not relied on "values we share with a wider civilization."15 His own implication was that, in contrast with Lawrence, the strength of Bowers was evident in the local ingredients that went into its making. …

High Court review 2003: the centenary year

Abstract: 2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal ...