Showing papers on "Majority opinion published in 2006"

The Educational Benefits of Sustaining Cross-Racial Interaction among Undergraduates.

Abstract: In June of 2003, the U.S. Supreme Court upheld the University of Michigan Law School's practice of considering race in admissions by a margin of 5-4 (Grutter v. Bollinger), but struck down the formulaic approach for admitting freshman by a margin of 6-3 (Gratz v. Bollinger). Even though the Court narrowed the use of race by rejecting mechanical scoring systems that assign bonus points to underrepresented students, it left the door open for colleges and universities to continue to consider race in admissions to enroll a "critical mass" of racially/ethnically diverse students. Among the members of the Court itself, there was major disagreement over the value and effects of diversity in an educational setting. For example, Justice Sandra Day O'Connor, who authored the majority opinion in Grutter, wrote that "student body diversity is a compelling state interest that can justify using race in university admissions," whereas her counterpart Justice Antonin Scalia wrote in the dissenting opinion that he was not convinced that educational benefits flowed from diversity and listed this shortcoming among a long list of other issues that can potentially bring about future lawsuits. Given the conflicting opinions, it is clear that the controversy regarding claims about the educational benefits of diversity is far from settled, and there continues to be a pressing need to understand empirically how students actually benefit, if at all, from being in more racially/ethnically diverse environments. This study applies a multilevel approach to examine the student- and institution-level effects of one key form of diversity--namely, frequency of cross-racial interaction. Two key research questions guided this study: (a) How do college students who report high levels versus low levels of cross-racial interaction compare with regard to the educational outcomes of openness to diversity, cognitive development, and self-confidence? (b) How do students who attend institutions with high peer versus low peer average levels of cross-racial interaction compare on measures of openness to diversity, cognitive development, and self-confidence? Background Because of the recent national attention on the constitutionality of race-conscious admissions practices, a growing body of empirical research about diversity has emerged in the last 10 years, focusing mainly on racial/ethnic diversity with particular interest in enrolling a larger proportion of underrepresented students (African American, Latino/a, & Native American). Several publications have recently reviewed this body of research (see, for example, Chang, Witt, Jones, & Hakuta, 2003; Hurtado, Dey, Gurin, & Gurin, 2003; Hurtado, Milem, Clayton-Pedersen, & Allen, 1998, 1999; Milem & Hakuta, 2000; Smith, Gerbick, Figueroa, Watkins, Levitan, Moore, et al., 1997). Basically, these reviews showed that diversity-related benefits are far ranging, spanning from benefits to individual students and the institutions in which they enroll, to private enterprise, the economy, and the broader society. There was remarkable consistency among these reviews concerning both the empirical studies they considered and the conclusions they drew. One important conclusion that emerged from these reviews is that the vitality, stimulation, and educational potential of an institution are directly related to the composition of its student body, faculty, and staff. A number of studies have shown that campus communities that are more racially diverse tend to create more richly varied educational experiences that help students learn and prepare them better for participation in a democratic society (Antonio, 2001b; Astin, 1993a; Bowen & Bok, 1998; Chang, 1999; Chang et al., 2003; Gurin, Dey, Hurtado, & Gurin, 2002; Hurtado, 2001; Milem, 1994; Orfield & Kurlaender, 2001; Pascarella, Edison, Nora, Hagedorn, & Terenzini, 1996; Sax & Astin, 1997). One reason for this appears to be that race still shapes opportunities and experiences in U. …

Tides of Consent: How Public Opinion Shapes American Politics

Abstract: Tides of Consent: How Public Opinion Shapes American Politics. By James A. Stimson. Cambridge: Cambridge University Press, 2004. 206p. 16.99 paper.The main goal of James A. Stimson's book is to show how the dynamics of public opinion impinge on the the American political process. This is a broad and potentially difficult task, particularly for such a succinct text. Nevertheless, I believe the book achieves its objectives quite convincingly.

Shattering the Myth of Legality: The Impact of the Media's Framing of Supreme Court Procedures on Perceptions of Fairness

Abstract: The tendency of the media to depict the Supreme Court as inherently apolitical, some scholars argue, is part of the reason that many believe in the “myth of legality” in which the Court is perceived to operate above the ideological skirmishes of everyday politics. Our experimental analyses show that citizens react more negatively to press reports of a politically motivated Court than they do to coverage portraying a Court that strictly follows legal guidelines. Interestingly, our results also suggest that it is not so much the perceived absence of political wrangling among justices but rather it is the presence of legal guidelines driving the outcome that is the source of the perception of fairness.

Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases:

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence pu...

Potential Solutions to Public Deliberation Problems: Structured Deliberations and Polarization Cascades

Abstract: Some deliberative theorists advocate for increased public participation to improve the health and vitality of democracy, but skeptics warn that public deliberation may fall prey to multiple decision-making pathologies. We describe a research program based on structured public deliberations about science and technology policies that was designed to explore the validity of critics' worst fears. In this research, we specifically test the complaint that group deliberations often bias toward the original majority preferences because of cognitive and affective errors in decision making, such as deference to the numerical majority opinion held within a group. Our results, based on data collected from a set of small-group public deliberations about nanotechnology, offer weak support to the polarization hypothesis. We explain this finding as the likely consequence of manipulating two key variables of deliberations: task facilitation and the quality of the argument pool. As a result, we argue that it is possible to structure public deliberations about policy to mitigate known decision-making problems. We conclude by also warning scholars of the dangers in assuming that opinion change consistent with polarization effects is inherently the result of undesirable decision-making qualities.

Term Limits for the Supreme Court: Life Tenure Reconsidered

Abstract: In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history. This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. In this Article, we call for a change to the life tenure rule for Supreme Court Justices. To resolve the problems of life tenure, we propose that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.

Network Analysis and the Law: Measuring the Legal Importance of Supreme Court Precedents

Abstract: We construct the complete network of 28,951 majority opinions written by the U.S. Supreme Court and the cases they cite from 1792 to 2005. We illustrate some basic properties of this network and then describe a method for creating importance scores using the data to identify the most important Court precedents at any point in time. This method yields dynamic rankings that can be used to predict the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court, and these rankings outperform several commonly used alternative measures of case importance.

PUBLIC OPINION REACTION TO REPEATED EVENTS: Citizen Response to Multiple Supreme Court Abortion Decisions

Abstract: While numerous works explores how single events or political actions affect public opinion, almost no research explores how this effect evolves with repeated actions. The Conditional Response Model holds that while elite actors can influence and polarize the public when they first act on an issue, subsequent action will not have this same effect. We challenge this model based on its depiction of psychological models of attitude formation and change. Instead of focusing on the number of times an actor has addressed an issue, we argue that the state of public opinion is the key to determining how the public will react to multiple elite actions over a long timeframe. We examine how the public reacted to multiple Supreme Court decisions on abortion. Our results suggest that the Conditional Response Model does a poor job of depicting public opinion and that actors are not limited in their influence by the number of previous actions on an issue.

The use of rhetorical sources by the U.S. supreme court

Abstract: This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns. Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups. This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests? One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community. For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

The Supreme Court and American political development

Abstract: This innovative volume explores the evolution of constitutional doctrine as elaborated by the Supreme Court. Moving beyond the traditional ""law versus politics"" perspective, the authors draw extensively on recent studies in American Political Development (APD) to present a much more complex and sophisticated view of the Court as both a legal and political entity. The contributors - including Pam Brandwein, Howard Gillman, Mark Graber, Ronald Kahn, Tom Keck, Ken Kersch, Wayne Moore, Carol Nackenoff, Julie Novkov, and Mark Tushnet - share an appreciation that the process of constitutional development involves a complex interplay between factors internal and external to the Court. They underscore the developmental nature of the Court, revealing how its decision-making and legal authority evolve in response to a variety of influences: not only laws and legal precedents, but also social and political movements, election returns and regime changes, advocacy group litigation, and the interpretive community of scholars, journalists, and lawyers. Initial chapters reexamine standard approaches to the question of causation in judicial decision-making and the relationship between the Court and the ambient political order. Next, a selection of historical case studies exemplifies how the Court constructs its own authority as it defines individual rights and the powers of government. They show how interpretations of the Reconstruction amendments inform our understanding of racial discrimination, explain the undermining of affirmative action after Bakke, and consider why Roe v. Wade has yet to be overturned. They also tell how the Court has collaborated with political coalitions to produce the New Deal, Great Society, and Reagan Revolution, and why Native Americans have different citizenship rights than other Americans. These contributions encourage further debate about the nature and processes of constitutional change.

Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts

Abstract: (ProQuest Information and Learning: ... denotes text missing in the original.) I. INTRODUCTION A popular myth in American constitutional law is that the "strict scrutiny" standard of review applied to enforce rights such as free speech and equal protection is "'strict' in theory and fatal in fact."1 This phrase, coined by the late legal scholar Gerald Gunther in 1972, has been called "one of the most famous epithets in American constitutional law"2 and has effectively defined the strict scrutiny standard in the minds of lawyers for two generations. Born of Gunther's observation, supported by the iconic decisions of the Warren Court, and reinforced in constitutional law teaching and scholarship, the myth teaches that strict scrutiny is an "inflexible"3 rule that invalidates every (or nearly every) law to which it applies.4 In recent years, however, this traditional understanding of strict scrutiny's inevitable deadliness has been challenged, most notably by Justice Sandra Day O'Connor. In Adarand Constructors v. Pena, O'Connor's majority opinion expressed the "wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact."'5 The fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying" that standard.6 In Grutier v. Bollinger, O'Connor's opinion for the Court turned wish into action and upheld an affirmative action policy under strict scrutiny.7 Rather than create insurmountable hurdles that indiscriminately invalidate laws, O'Connor argued, the "fundamental purpose" of strict scrutiny is to "take relevant differences into account."8 In short, when applying strict scrutiny, "[c]ontext matters."9 This Article contributes to this debate by offering a systematic empirical study of strict scrutiny in the federal courts. Reporting the results of a census of every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003, this study shows that strict scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the context-sensitive tool described by O'Connor. Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of law in which they use the test. Overall, 30 percent of all applications of strict scrutiny-nearly one in three-result in the challenged law being upheld. Rather than "fatal in fact," strict scrutiny is survivable in fact. This Article begins, in Part II, by defining the strict scrutiny standard and tracing its theoretical underpinnings. Both the standard's formal terms and its underlying justifications leave ample room for laws to be upheld-hence, Gunther's premise of "strict in theory." Yet, in the Warren Court, the standard appeared to be "fatal in fact" as rigorous review was employed to invalidate laws at seemingly every turn. Coming on the heels of the Warren Court, Gunther's quotable phrase crystallized the notion that strict scrutiny was always (or nearly always) deadly. This view of strict scrutiny is common, although as Justice O'Connor's statements suggest, it has recently been subject to challenge. In addition to Justice O'Connor, a number of academics have argued that the traditionally rigid tiers of scrutiny so popular in American constitutionalism are softening. Part III lays out the methodology of the empirical study and reports the general results. A key assumption underlying the decision to study all federal court decisions applying strict scrutiny is that constitutional law cannot be fully understood by looking only at the Supreme Court and its decisions. American constitutional law scholarship focuses almost exclusively on the Supreme Court, with little attention to the lower federal courts. While the Supreme Court sets the ground rules for judicial review, the lower courts are where those rules are most often applied to specific facts and particular laws. …

Supreme Court Auditing of the US Courts of Appeals: An Organizational Perspective

Abstract: Using an aggregate-level model of Supreme Court-circuit court interactions, this study assesses the extent to which the Court's auditing process of circuit court outputs is shaped by organizational dynamics such as structural capacity, institutionalization, and demographic characteristics. Principals in organizational hierarchies must audit the behavior of their agents to ensure that the agents are faithfully complying with the principals' preferences. In the case of the Supreme Court, such auditing activities must take place in the face of very limited institutional capacity on the Court's part. We propose that the Court considers certain broad organizational and institutional characteristics at the circuit level when performing this task. In particular, we find that the Court strategically allocates its limited institutional resources to audit decisions to respond to its recent interactions with individual circuits in past terms, the circuits' internal decision-making dynamics (including dissent and reversal rates), and goal conflict between the circuit and the Supreme Court.

Court of first instance? Towards a pro-poor jurisdiction for the South African Constitutional Court

Abstract: Despite being premised on a transformative constitution, the South African Constitutional Court has not always functioned as an institutional voice for the poor. This is apparent in the relatively low number of cases brought by poor people, as a percentage of the total number of cases in which decisions are handed down by the Court. This article examines the extent to which the Court can in fact be said to have a pro-poor jurisdiction. In particular, it considers whether the Court's practice regarding direct access applications adequately facilitates the uptake of issues affecting the fundamental rights of poor people. The Court's record indicates that it has failed to utilise the direct access mechanism to allow constitutional matters to be brought directly to it by poor people who have been unable to secure legal representation. In so doing, the Court has failed to live up to its transformative promise. Two recent decisions of the Court - Mnguni v Minister of Correctional Services and De Kock v Minister of Water Affairs and Forestryl/ig - are used to indicate how the Court might pursue a different modus operandi to develop a pro-poor jurisdiction.

The psychology of the Supreme Court

Abstract: 1. The Supreme Court: The Least Understood Branch 2. The Selective Nature of Supreme Court Justices 3. Steps in the Decision-Making Process 4. Day to Day in the Life of the Court 5. A Psychological Analysis of Decision Formation 6. The Rational-Choice Model in Judicial Decision Making 7. The Bush v. Gore Decision 8. How Individual Justices Affect Decisions 9. The Chief Justice: More Influential than Other Justices? 10. Can the Court's Decisions Be Predicted? 11. Evaluating the Process References Index

The Supreme Court in the American Legal System

Abstract: The Supreme Court in the American Legal System. By Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh. New York: Cambridge University Press, 2005. 416p. 28.99 paper.If there is any example of a Kuhnian paradigm in political science, it would be the attitudinal model in Supreme Court decision making. Over a half century ago, C. Herman Pritchett boldly showed data that revealed “political” decision making by the justices of the nation's high court. Harold Spaeth was among the pioneers in this research and is now regarded as its strongest adherent. The justification for the Supreme Court Attitudinal Model, known to friends and foes alike by the acronym “SCAM,” is relatively simple: The preponderance of individual-level decision making can be explained as a function of the attitudes of the justices. Like the ideal model, it is parsimonious and explains a great deal of variance. Even those who have been critical of SCAM concede that the attitudes of the justices are the most important determinant of individual-level decision making at the Supreme Court level.

'A Shining City on a Hill': American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law

Abstract: This is a tale of two cultures. The first culture is that of the United States Supreme Court and of the lawyerly elite. In that culture, it is not only socially acceptable for the Court and law professors to rely on foreign law in deciding American cases, it is obligatory that the Court do so. Operating within the confines of this elite culture, the Justices have struck down laws as being unconstitutional since at least the time of Chief Justice Warren's famous 1958 plurality opinion in Trop v. Dulles. More strikingly, the Court has relied on foreign law in deciding U.S. constitutional cases more generally at least since Dred Scott and arguably since the Marshall Court era. So all-encompassing is the Supreme Court's practice of relying on foreign law that some of the most famous and consequential Supreme Court cases in American history have been decided with reference to foreign law. Among the cases so decided are: federalism cases, like The Legal Tender Cases and The Selective Draft Law Cases; separation of powers cases like O'Malley v. Woodrough, dealing with taxation of judge's salaries; criminal law cases from 1820 to 2005; famous criminal procedure cases, like Hurtado v. California, Palko v. Connecticut; Wolf v. Colorado, and Miranda v. Arizona; and even economic liberty cases like Block v. Hirsh, a case involving the constitutionality of rent control. In the elite culture of the U.S. Supreme Court, references to foreign law to determine the scope of U.S. constitutional rights are totally commonplace.

Samuel a. Thumma & Jeffrey L. Kirchmeier, Appendix a: Terms Defined by the United States Supreme Court, from the Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries

Abstract: This appendix to The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries lists all terms defined by the United States Supreme Court through the 1997-98 Term. The Article itself, available as a separate download, examines the use of dictionaries by the United States Supreme Court. Beginning with a short history of dictionaries and their use, the Article reviews the Supreme Court Justices' use of dictionaries in their opinions throughout the history of the Court. The Article is critical of the Justices' lack of consistency in their use of dictionaries, and it discusses problems with the use of general purpose dictionaries in legal opinions. In conclusion, the Article makes several suggestions regarding how dictionaries still may be used as an important aid in legal analysis. Other appendices to this Article are available as separate downloads. The appendices list (1) every term ever defined by a dictionary in a Supreme Court opinion; (2) every case where a Supreme Court Justice has used a dictionary in an opinion; and (3) every dictionary used by a Supreme Court Justice. An update to this appendix, also available for download, is Samuel Thumma and Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 The Green Bag 51 (2001).

Strategic interaction among courts within the preliminary reference process – Stage 1: National court preemptive opinions

Abstract: . While scholars today are well-acquainted with how the European Community preliminary reference process works, little research has been done to investigate strategic court interaction – that is, intentional, procedural court behaviour employed to influence the substantive direction of legal evolution, within that process. The present investigation, which is part of a larger project examining such court behaviour throughout the referral process, focuses on the initial stage: the decision to refer. Within that stage lies the opportunity for national courts to stack the interpretive deck for the entire decision-making process via a preemptive opinion, the submission of which is neither required, suggested nor prohibited by written procedural guidelines. It is assumed that courts are strategic institutions that seek to maximize their policy objectives, and therefore, national courts submit preemptive opinions to obtain that goal. Such strategic behaviour, however, is influenced by intervening factors – namely the acceptance of European Court of Justice intervention, national judicial procedure, issue complexity and individual court experience.

Same-Sex Relationships: From 'Odious Crime' to 'Gay Marriage'

Abstract: I FROM FELONY TO THE LOVE THAT IS PROUD TO SPEAK ITS NAME II PARTNERSHIP OR MARRIAGE: THE PROVISIONS OF THE CIVIL PARTNERSHIP ACT III THE FAMILY, PARTNERSHIP, AND THE JUDGES APPENDICES Text of The Civil Partnerships Act 2004, Parts 1 and 2, and Schedules 1 to 9 Report of the Committee on Homosexual Offences and Prostitution paras 1 - 147 and pp 130 - 135 Judicial Decisions Halpern et al v Attorney General of Canada et al, Court of Appeal for Ontario Lawrence v Texas, United States Supreme Court Hillary Goodridge & others v Department of Health and others, Supreme Judicial Court of Massachusetts Opinions of the Justices to the Senate, Supreme Judicial Court of Massachusetts Lofton v Secretary of the Department of Children and Family Services, United States Court of Appeals, Eleventh Circuit

Lower Court Discretion

Abstract: Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must implement that policy faithfully. The law is a signal - the means by which the Court communicates its preferences. This article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This article advances a more nuanced account of how law shapes the decision-making environment, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over law-making and case outcomes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges' goals and therefore their strategies will vary depending upon whether they seek to influence law development or merely to shape case outcomes. The article also critiques the normative assumption, implicit in principal-agent models, that lower federal courts should follow the preferences of the Supreme Court. Because law inevitably creates discretion for lower courts, a norm of compliance with superior court precedent does not necessarily require following the preferences of the Supreme Court. Many of the reasons judicial discretion exists - for example, to allocate power within the judicial hierarchy - argue against such a centralization of power in the Supreme Court.

Private Polls and Presidential Policymaking Reagan as a Facilitator of Change

Abstract: Did the Reagan administration disregard majority will when crafting its policy initiatives? Did it cater to a narrow partisan constituency instead? The answers to these questions will help with an assessment of Jacobs and Shapiro's (2000b) hypothesis that presidents since the late 1970s have used private White House survey research as a tool to manipulate or assuage centrist public opinion while meeting the policy demands of their partisan core supporters, resulting in a decline in presidential responsiveness to majority will. Using the actual surveys administered by Richard Wirthlin (Reagan's pollster) between 1981 and 1983, this article will demonstrate the level of consistency between majority opinion on 129 policy issues and Reagan's behavior through 1984, and it will explore the conditions under which the president was more or less likely to respond to public preferences. The data reveal that the Reagan administration was constrained by the popular will in predicable ways: if the policy issues were about domestic concerns, highly popular, and visible in the media, then the administration acted in line with public preferences more than 70 percent of the time. Further, Reagan and his advisers were selective in responding to party activists: they championed issues drawn from their conservative ideological agenda that fit with the current tide in public opinion, while sidestepping other issues dear to party activists that encountered strong majority resistance. While I do not contest Jacobs and Shapiro's (2000b) important observation that presidents often use survey research to "craft talk" in an attempt to channel the public debate, the evidence here highlights how the president nonetheless remains constrained by the popular will, at least on domestic issues.

Operationalizing the Section 5 Retrogression Standard of the Voting Rights Act in the Light of Georgia v. Ashcroft: Social Science Perspectives on Minority Influence, Opportunity and Control

Abstract: IN GEORGIA V. ASHCROFT, 539 U. S. 461 (2003), by a 5-4 vote, the Supreme Court laid down a new interpretation of the meaning of the retrogression standard in Section 5 of the Voting Rights Act. Justice O’Connor’s majority opinion replaces the exclusive focus in earlier Section 5 jurisprudence on reduction in the realistic opportunity of minority voters1 to elect candidates of choice2 with what is commonly described as a dualistic approach that allows jurisdictions to determine which of two variants of retrogression they wish to claim their plan avoids: (1) retrogression in ability of minorities to elect candidates of choice, or (2) retrogression in the magnitude of overall minority influence.3 Although the years prior to Georgia v. Ashcroft had already seen both important changes in how the Section 5 standard was legally defined and in how the U.S. Department

The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996)

Abstract: The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also provides intriguing opportunities for comparative legal scholars. Regulations restricting women's right to veil have been challenged as unconstitutional in many countries. This should thus be of great interest to scholars of comparative law, comparative constitutionalism and international human rights. We provide here an annotated translation of this SCC opinion. We thus hope to facilitate comparative discussion about, inter alia, free exercise of religion, freedom of expression, women's rights, and children's rights.

The Court's Agenda and the Nation's

Abstract: TABLE OF CONTENTS I. THE NATION'S AGENDA A. Definitional Preliminaries B. The Data C. Some Surprising Omissions II....AND THE COURT'S A. The Highlights B. A Quiet Term? III. THE LONGER VIEW A. Looking Back B. A Digression on Importance IV. IMPLICATIONS A. On Salience and Democracy B. In Search of Explanation 1. The Puzzle of Esteem 2. The Puzzle of Power V. CONCLUSION: SITUATING THE SUPREME COURT "Government by judiciary" is the traditional warning from those who seek to limit the power of the courts. (1) Policymaking in a democracy, so the argument goes, should be left to officials more responsive to popular will than judges, who because of their comparative nonaccountability to the public should keep their policymaking to a minimum. Government by judiciary, it is said, is the antithesis of democracy. (2) The charge of government by judiciary is one side of an old debate, (3) to which there is hardly more to add as a matter of political or constitutional theory. Yet the question of government by judiciary lingers, even as its political and ideological coloration changes. (4) It is this very persistence of the issue that invites us to assess what appears to be one of its fundamental empirical premises--that the courts are on the verge of occupying a substantial portion of American policymaking terrain. (5) To evaluate this premise, however, we must examine critically the actual business of the courts and compare it to the business of the country and its citizens. One component of this examination, and my focus here, is the narrower question of what the Supreme Court does and how its agenda relates to the agenda of government as a whole. Implicit in the typical charge of government by judiciary is the belief that much of the task of governance and policymaking has been, is now, or might in the future be commandeered by an unelected federal judiciary, in particular the Supreme Court. And although concerns about government by judiciary need not be restricted to or focused on the Supreme Court, in practice the Court is the most frequent object of worries about judicial activism, with their accompanying calls for judicial restraint, judicial modesty, judicial minimalism, and judicial deference to the decisions of legislatures and administrative agencies. (6) Yet the extent to which this anxiety about judicial aggressiveness rests on a sound factual foundation has seldom been investigated, in part because the existing debates tend to focus on a small number of admittedly important substantive issues--abortion, same-sex marriage, affirmative action, the right to die, and the role of religion in public institutions, for example--and neglect to consider just what proportion of governance in the aggregate is actually at risk of being controlled by the judiciary in general or the Supreme Court in particular. (7) This failure to probe how much of the policymaking or governance function resides in the Supreme Court can thus be seen as the consequence of a persistent misframing of the question in which commentators appear to make the fallacious leap from the accurate premise that much of what the Supreme Court does is important to the erroneous conclusion that much of what is important is done by the Supreme Court. Lawyers, judges, and legal academics are not alone, of course, in seeing the world through the lens of their own discipline. (8) But the tendency to exaggerate our own profession's role in the grand scheme of things appears more pronounced for constitutionalists and Courtwatchers than for, say, rocket scientists, dentists, and plumbers. This tendency shows no signs of abating, and it is what prompts a careful look at the place of the judiciary and the place of the Supreme Court within the larger domain of politics and policymaking. My goal in this Foreword is to examine the relationship between the Supreme Court's activities and the totality of the nation's governance. …

The Art and Practice of Court Administration

Abstract: Introduction Judicial Administration and Court Administration Court Administration and Maslow's Hierarchy of Needs Structure of This Book THE CONTEXT FOR COURT ADMINISTRATION An Historical Context The Pioneers Critical Nurturing and Facilitating Organizations Context Associated with Court Organization, Vocabulary, and Filings Current Organizational Constructs For Handling Caseload Across the States A Common Vocabulary Alternatives to Current Trial Court Structure Caseloads in State and Federal Courts The Environmental Context: Social and Political Factors Courts in Our Government Structure: Separation of Powers, Checks and Balances, and Court Administration Courts in Society Funding and Its Influence on Court Administration The Environmental Context: Clerks of Court, Prosecutors, and Sheriffs Clerk of Court The Prosecutor The Sheriff The Environmental Context: Working With Trial Court Judges Election, Tenure, and Removal of Judges Judges as Professionals and Managers The Different Perspectives of Judges and Administrators The Independence of Trial Judges The Chief Judge-Administrator Team The Administrator and the Bench The Relationship between Participation on Statewide Committees and Court Administration The "Elbow" Staff of Judges THE ART OF PRACTICING COURT ADMINISTRATION On Being a Court Administrator Nature of the Position Court Administrators' Skills and Qualities The Need for Leaders in Court Administration The Hiring Process for Court Administrators Introduction to the Hierarchy of Court Administration Constitutional and Statutory Mandates The Hierarchy of Court Administration Explained Adjudicative and Administrative Imperatives Hierarchy of Court Administration: Mission-Critical Needs Maslow's Hierarchy and the Hierarchy of Court Administration Mission-Critical Functions Explained Hierarchy of Court Administration: Security and Continuity of Operations Maslow's Hierarchy and the Hierarchy of Court Administration Security Continuity of Business Operations Hierarchy of Court Administration: External Relationships Maslow's Hierarchy and the Hierarchy of Court Administration Relationships Based on Law Relationships Based on Structure and Funding Sources Attorneys, Bar Associations, and Others Who Participate in Litigation Broader Societal Relationships Hierarchy of Court Administration: Proactive Management Maslow's Hierarchy and the Hierarchy of Court Administration One Trial Court at a Time Outputs, Not Inputs Evaluating Programs and Projects Assuring Data Quality and Using Data to Determine Management Decisions Planning, Mission and Vision Statements, and Environmental Scanning Identifying and Adopting Best Practices from Other Courts Problem-Solving Courts Refining Caseflow Management Improving the Jury Experience Embracing Technology and Finding New Ways to Benefit From It Inducing and Managing Change Attracting and Retaining Staff Assuring Access Interaction with the Community Working with and Supporting Stakeholder Organizations Maintaining and Adapting Facilities Hierarchy of Court Administration: Leadership Organization Maslow's Hierarchy and the Hierarchy of Court Administration Qualities of Leadership Organizations Concluding Thoughts Bibliography Index