Showing papers on "Majority opinion published in 2010"

Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

Abstract: This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

Public Opinion and Senate Confirmation of Supreme Court Nominees

Abstract: Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.

U.S. Public Opinion on Torture, 2001–2009

Abstract: Many journalists and politicians believe that during the Bush administration, a majority of Americans supported torture if they were assured that it would prevent a terrorist attack. As Mark Danner wrote in the April 2009 New York Review of Books, “Polls tend to show that a majority of Americans are willing to support torture only when they are assured that it will ‘thwart a terrorist attack.’” This view was repeated frequently in both left- and right-leaning articles and blogs, as well as in European papers (Sharrock 2008; Judd 2008; Koppelman 2009; Liberation 2008). There was a consensus, in other words, that throughout the years of the Bush administration, public opinion surveys tended to show a pro-torture American majority.

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Abstract: Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

Locating Supreme Court Opinions in Doctrine Space

Abstract: We develop a scaling model to estimate U.S. Supreme Court opinion locations and justice ideal points along a common spatial dimension using data derived from the citations between opinions. Citations from new opinions to precedent opinions usually apply and endorse the doctrine of the precedent opinion; however, sometimes they implicitly or explicitly dispute the precedent opinion. We collect original datasets classifying citations from search and seizure and freedom of religion opinions written between 1953 and 2006 into these different types and develop a model relating the similarity of the doctrine embodied in the citing and cited opinions to the relative probability of these different types of citations. The resulting spatial estimates of opinion location are used to evaluate theories of Supreme Court bargaining and opinion writing. We find empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this article can facilitate a range of future research.

The judiciary as legislator? How the European Court of Justice shapes policy-making in the European Union

Abstract: The question of whether, and if so, how the European Court of Justice influences European integration has been a matter of long-standing academic dispute. Several more recent empirical studies have shown that the Court influences the integration path, but scholars have also documented that member states can successfully limit the practical relevance of activist Court decisions. Drawing on this literature, this paper argues that the Court eventually impacts integration in salient policy fields effectively when the legislator incorporates judicial considerations in the policy-making process. The theoretical section conceptualizes the leverage of the Court in the legislation process and the empirical section elucidates how the judiciary shaped legislation in the development of exchange students' social rights. Findings show that the Court can successfully promote distinct legislative outcomes.

Justices and Legal Clarity: Analyzing the Complexity of Supreme Court Opinions

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

Sensationalism and Sobriety Differential Media Exposure and Attitudes Toward American Courts

Abstract: While a great deal of research has focused on under- standing the foundations of public support for American courts, scant attention has been paid to the role of the media for such attitudes. Given the media's demonstrated ability to influence public opinion, this remains a substantial gap in the literature. In the present paper we examine how different types of media—sensationalist (i.e., political radio and cable news) or sober (i.e., newspapers and network news) — influence individuals' attitudes toward both the U.S. Supreme Court and courts at the state level. In line with our predictions, we find that sensationalist media exposure depresses both diffuse and specific support for American courts. Additionally, our results call into ques- tion the unconditional nature of the ubiquitous sophistication-approval relationship. We find that sophistication's positive effect on court atti- tudes is conditional on an individual's particular source of political information.

Nonconformity Defines the Self: The Role of Minority Opinion Status in Self-Concept Clarity

Abstract: Drawing on distinctiveness and social identity theories, the present studies tested whether minority opinion holders would have a more clearly defined sense of self than majority opinion holders. In Study 1, participants who were induced to believe that they held a minority opinion on a controversial issue had higher subsequent self-concept clarity scores than did those who were induced to believe that they held a majority opinion, controlling for self-esteem. Furthermore, the relationship between minority opinion status and self-concept clarity was strongest among participants whose opinions were highly expressive of their values (Studies 2 and 3), as well as among participants who identified strongly with the group in which they were a minority (Study 3). Theoretical and practical implications of these results are discussed.

Citizens United and the Illusion of Coherence

Abstract: The self-congratulatory tone of the majority and concurring opinions in last term’s controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority’s view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an “outlier” 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court’s 1976 opinion in Buckley v. Valeo.Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an “outlier” remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of the Court’s campaign finance jurisprudence. In this regard, consider the Court’s declaration as an empirical matter – apparently for all types of elections and all types of spenders – that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” Partly to justify this unsupported empirical claim, the Court embraced a narrow, “crabbed” view of corruption, contrary to other precedent including Buckley, that seemed to include little more than quid pro quo already illegal under federal bribery law, and that excluded “ingratiation and access” as forms of corruption. Consider also the Court’s declaration that in the campaign finance context neither the identity of the speaker nor any distortion of the political process caused by disproportionate spending can ever be the basis to limit someone’s right to spend in elections.Soon enough, this language will force the Court into a corner, where it will either have to adopt a view that no limits on money in politics are ever constitutional or, more likely, vote to sustain some limits on money in politics through doctrinal incoherence. For example, it is unclear how the Court applying the broad pronouncements of Citizens United could possibly sustain spending limits against foreign nationals, who might like to flood U.S. election campaigns with money to influence electoral or legislative outcomes. Indeed, if the Court took its own language seriously about the meaning of corruption in a future case, even normal limits on contributions to candidates would be in serious danger of being struck down as violating the First Amendment. We need not wait for future cases to see this incoherence, because the Court’s new doctrine is already incoherent. The Citizens United majority could not satisfactorily explain how independent expenditures, which apparently cannot corrupt, were so corruptive, apparently corruptive, or distorting of a judicial election in the 2009 case Caperton v. Massey that the Court mandated the recusal of a state supreme court chief justice hearing a case involving a corporate executive who had made large independent expenditures supporting the chief justice’s election. The Citizen United majority is not in deed treating all elections and speakers equally, even if it is in word.The Court’s present and future incoherence in its campaign finance jurisprudence reveals a broader point: the Court’s approach to jurisprudential questions may be tempered by a political sensibility. Just as the Court before Citizens United treated corporations and labor unions as subject to identical campaign finance regulation despite the clear inapplicability of the Austin rationale to labor unions, it is likely to treat foreigners and American citizens wishing to make campaign expenditures differently despite the uniformity of the rhetoric of free speech rights in Citizens United. This analysis suggests that the Court’s jurisprudence, while certainly shifting in a deregulatory direction, may not move to a position of complete deregulation unless the Court is willing to endure continued public backlash. At least in the campaign finance context, it may be that Court doctrine moves within a range, bounded at its extremes by public opinion.Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court’s analysis in Citizens United is likely to lead to new incoherence in the Court’s campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court’s campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

''An Appeal to the People'': Public Opinion and Congressional Support for the Supreme Court

Abstract: Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself, explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court’s workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics.

Hostile witnesses, judicial interactions and out-of-court narratives in a north Indian district court:

Abstract: This article examines the argument that people in India are strongly oriented towards litigation in court as against other forms of negotiation or advising. In spite of the centrality of the court system to Indian public life, the flow of cases arriving at court does not reflect any such fixed preference. Going to court may simply be a choice which the parties make in the first instance, but which will eventually be abandoned in favour of private forms of compromise. By drawing on the ethnography of a court case followed in a district court of Himachal Pradesh, this contribution will show how even in serious criminal cases where no private compromise is allowed, it often happens that all the prosecution witnesses deny before the judge what they are supposed to have previously stated to the police. The analysis of court interactions and out-of-court narratives will show how nonofficial forms of conciliation may internally unsettle the rules of evidence followed in criminal proceedings.

Articles of Faith: Religion, Secularism, and the Indian Supreme Court

Abstract: 1. Introduction 2. .Defining Religion: The Supreme Court and Hinduism 3. The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism 4. In the Name of God: Regulating Religion in Elections 5. Good Citizens: Religion and Educational Institutions 6. Boundaries of Faith: The Court and Conversion 7. Imposing legal Uniformity: The Court and Muslim Minority Rights 8. Judging Religion: A Nehruvian in Court 9. Conclusion Bibliography

Explaining High-Profile Coverage of State Supreme Court Decisions*

Abstract: Objective. In this article, we investigate the decision of media in the U.S. states to give high-profile coverage to state supreme court decisions. While research on the U.S. Supreme Court has forged an association between media coverage and the political salience of court decisions, scholars have been unable to examine such coverage in the increasingly important state courts of last resort. Methods. Utilizing new data of high-profile coverage over time in these courts, we examine the extent to which case characteristics, judicial behavior, and institutional variation influence media attention. Our empirical model covers 28,045 state supreme court cases over all 50 states, between the years 1995–1998. Results. Our findings indicate that the likelihood of high-profile coverage increases when certain case characteristics, particularly declarations of unconstitutionality, are present, in addition to dissent within a court. Despite the importance of institutional differences among state supreme courts, front-page coverage is not affected by this variation. Conclusions. In our conclusions, we evaluate those scenarios in which high-profile media coverage is more likely for state supreme court cases, and the possible implications this may have for judicial politics.

Is the Supreme Court a 'Majoritarian' Institution?

Abstract: In recent years, a number of scholars have argued that the Supreme Court has always been, and is destined to be, a majoritarian institution. Building on the work of Robert Dahl, these scholars collectively offer both historical and predictive claims: they assert that the Court's decisions have tended to reflect the values and preferences of national majorities and that deep structural forces and incentives constrain will continue to constrain the Court from departing from the preferences of these national majorities. This article takes issue with those claims. Using as a starting point the Court's dramatically countermajoritarian recent decision in the Citizens United case, this article identifies at least six problems with the majoritarian thesis: (1) lack of clarity about who the relevant majority is that purportedly constrains the Court, such as national lawmaking majorities, national popular opinion majorities, or other possible definitions of the majority; (2) lack of convincing accounts of the mechanisms by which one or another of these majorities manages to constrain the Court; (3) disagreement about whether the Court's most momentous decisions, such as Brown v. Board of Education, were in fact majoritarian or not; (4) confusion between whether individual Court decisions reflect majoritarian preferences and whether the Court over long periods of time eventually reflects majoritarian beliefs; (5) failure to take into adequate account the changing power of the Court over time; (6) issues about whether data support the majoritarian thesis. In addition, this article argues that good reasons exist to believe that the history of judicial review will not necessarily predict its future. However independent the Court might or might not have been in the past of political and popular constraints, the Court is likely to have more autonomy going forward than in the past. The strongest mechanism through which the Court reflects the outcomes of electoral processes, the appointments process, has been attenuated by the much longer average time Justices now serve; seats now become vacant on average every 3.1 years, rather than the 1.6 years that had long been the norm. That makes even more random any linkage between judicial appointments and national electoral outcomes. The article concludes by offering Citizens United as a powerful reminder that, despite the best efforts of modern majoritarian theorists, Bickel’s countermajoritarian difficulty endures. Citizens United may prove to be an isolated but important episode – or a harbinger of an assertive new era of judicial review that operates with a good deal of independence from national lawmaking and popular majorities.

Predicting Drift on Politically Insulated Institutions: A Study of Ideological Drift on the United States Supreme Court

Abstract: We examine whether policymakers can predict whether nominees to the Supreme Court will drift ideologically. We analyze the pre-nomination speeches, articles, and separate opinions published by every justice who served at least ten years on the Court. Our data show that we can indeed predict whether a nominee will drift ideologically once on the Court.

A Theory of Opinion Writing in a Political Hierarchy

Abstract: We develop a model of opinion-writing in the judicial hierarchy. The model adopts a case-space approach to judicial decision-making and exploits informational asymmetries across levels of the hierarchy. In the model, a lower court writes an opinion with two features: a legal rule and a level of quality. An upper court must then decide whether to review the decision. The model yields new insights about the strategic incentives created by the judicial hierarchy. Empirical predictions are derived which demonstrate that several common tests employed in the literature may not discriminate among competing sets of first principles. Additional implications for rule-making in a bureaucratic hierarchy are also considered.

Forward to the Past

Abstract: The Supreme Court’s decision in Bilski v. Kappos - banning all patents claiming ‘‘abstract ideas,’’ but refusing to categorically bar any particular type of patent - represents a return to the Court’s past patentable subject matter jurisprudence. In so returning, the Court determined that business methods could potentially be patentable.This Supreme Court Review article discusses what is essentially a restart: lower courts and the PTO must remake the law using the same precedent that led to the rigid rules rejected by the Court in Bilski.Part I discusses Mr. Bilski’s patent application and the Court’s ruling that it is an unpatentable abstract idea. Part II takes a step back and considers how the law led to the growth of business methods patents. In particular, this part discusses how the Federal Circuit applied Supreme Court precedent to Bilski’s application in an effort to reign in business methods. Part III critically analyzes the Federal Circuit’s opinion, the Supreme Court’s granting of certiorari, and oral argument. Part IV describes in further detail the Court’s various opinions in Bilski and their reasoning. Part V discusses Bilski’s implications for the future of patent jurisprudence and innovation.

The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage

Abstract: This Article critiques the changing U.S. approach toward the International Criminal Court (ICC). It begins by isolating those aspects central to prior U.S. opposition to the ICC. It then assesses the relevance of these concerns in light of the Court’s work to date. This Article also considers the outcome of the 2010 ICC Review Conference. It analyzes the amendments made to the Court’s Statute regarding the controversial crime of aggression and explains why these new provisions are not likely to create significant concerns for the United States. As its final area of inquiry, this Article examines the early work of the ICC in order to determine whether the institution is in fact fulfilling its mission to act as a “court of last resort.” Determining that the ICC’s present approach to case admissibility neither provides evidence that the Court is on a path that assures its anti-impunity goal nor comports with the U.S. preference to see justice performed at the national level, this Article concludes by noting the changes that will have to be made before U.S. accession can become a possibility

A Strategic Court and National Security: Comparative Lessons from the Israeli Case

Abstract: This article analyzes decision making in national security cases on the Israeli Supreme Court and draws broader comparative conclusions. In the post-9/11 era, security has topped the national agendas in numerous established democracies, with repercussions involving their courts. Analyses of decision making on national security in Western judiciaries may benefit from lessons from the Israeli Court, which has been a pivotal player in this domain. A formal model analyzes how internal court institutions plus the rationality of individual justices are conducive to strategic Court behavior. Predictions are tested empirically using an original database with security decisions from 1997 to 2004. The findings indicate that constitutional design, Court leadership, ideology of the ruling coalition and interest group activity have influenced decisions of the Israeli Court on national defense. This study builds on and expands existing scholarship on the complex links among law, politics, and national security in Israel and beyond.

‘Nothing But a Road Towards Secession’? – The International Court of Justice’s Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Abstract: On 22 July the International Court of Justice (ICJ) delivered its Advisory Opinion on Accordance with international law of the unilateral declaration of independence (UDI) in respect of Kosovo. There is a wide range of legal questions related to Kosovo’s UDI. However, the ICJ decided by way of a narrow interpretation of the General Assembly’s request to focus only on prohibitive rules. The Court came to the conclusion that the UDI did not violate international law. While this result is defendable, the way the Court got there is problematic. The Court missed its opportunity to provide legal guidance in fields of secession and self-determination. This article shall give a first overview of the Court’s reasoning.

Politicians Do Pander: Mass Opinion, Polarization, and Law Making

Abstract: The capabilities of the American state sometimes depend on the ability of policy-makers to act autonomously, on the basis of their own preferences and beliefs, in ways that serve broad societal and state interests but lack support from powerful constituencies. In a highly acclaimed book on the politics of health care reform in the Clinton administration, Jacobs and Shapiro (2000) argue that "politicians don't pander." Rather, they do indeed act on their own ideological and policy views, using polls mainly to guide rhetorical strategy, not to make policy decisions. I challenge their interpretation and bring to bear other considerations to argue for an increased influence of mass opinion, and to present a high-pandering, limited-autonomy account of the contemporary politics of law-making. In concluding, I comment briefly on this account's consistency with recent events and on the issues it poses for future research.

Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court

Abstract: Plurality decisions on the Supreme Court represent extreme dissensus. In those cases, no clear majority is formed for any one controlling rationale for the final disposition. Such decisions are important to understand both because they result in the erosion of the Court’s credibility and authority as a source of legal leadership, and because they teach us broader lessons about judicial decision making. In this paper we ask: what causes the Court to issue an opinion which lacks precedential value? We propose and test three theories to explain plurality decisions - a social consensus account, a “hard” case theory, and an explanation based on the “collegial game.” Hypotheses are tested based on all orally argued cases during the 1953-2006 terms. We find that splintering is more likely when the Court reviews contentious or politically salient questions, in constitutional cases, and when the median justice writes the opinion. When the Chief Justice assigns the opinion, plurality decisions are less likely. We discuss our findings in light of existing theories of judicial decision making and examine how our new understanding of plurality opinions sheds light on decision making on the Court more generally.

“Not Imminent in My Domain!” County Leaders’ Attitudes toward Eminent Domain Decisions

Abstract: Eminent domain is an urgent problem facing local government administrators and scholars throughout the United States. However, the literature is sparse regarding how local leaders make decisions on this hot-button issue. A 2006 Government Accountability Office report noted a lack of data about local governments’ use of their eminent domain authority. A survey of county managers in North Carolina was conducted to redress this apparent knowledge gap. Although the findings are primarily generalizable only to other Dillon’s rule states, such data demonstrate that eminent domain applies more often for “narrow” (public use) purposes, such as water and sewer systems, than for “broad” (public good) purposes, such as economic development. Current and future property considerations also influence eminent domain decisions. [A] law that takes property from A, and gives it to B: It is against all reason and justice, for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. —Associate Justice Samuel Chase, majority opinion, Calder v. Bull (1798)