Showing papers on "Majority opinion published in 2013"

Rough Justice: The International Criminal Court in a World of Power Politics

Abstract: Introduction 1. A Framework for Analysis 2. Origins 3. The Phantom Court (1998-2002) 4. Caution and Consensus (July 2002-March 2005) 5. Breakthrough (2005-2008) 6. Power Plays (2008-2012) Conclusion: A Constrained Court

The influence of neuroscience on US Supreme Court decisions about adolescents' criminal culpability

Abstract: In the past 8 years, the US Supreme Court has issued landmark opinions in three cases that involved the criminal culpability of juveniles. In the most recent case, in 2012, a ruling prohibited states from mandating life without parole for crimes committed by minors. In these cases, the Court drew on scientific studies of the adolescent brain in concluding that adolescents, by virtue of their inherent psychological and neurobiological immaturity, are not as responsible for their behaviour as adults. This article discusses the Court's rationale in these cases and the role of scientific evidence about adolescent brain development in its decisions. I conclude that the neuroscientific evidence was probably persuasive to the Court not because it revealed something new about the nature of adolescence but precisely because it aligned with common sense and behavioural science.

Is the u.s. supreme court's legitimacy grounded in performance satisfaction and ideology?*

Abstract: Bartels and Johnston have recently presented evidence suggesting that the legitimacy of the Supreme Court is grounded in the ideological preferences and perceptions of the American people. In addition, they offer experimental data purporting to show that dissatisfaction with a single Court decision substantially diminishes the institution’s legitimacy. These findings strongly break with earlier research on the Court’s institutional support, as the authors recognize. The theoretical implications of their findings are profound. If the authors are correct that legitimacy is strongly dependent upon satisfying the policy preferences and ideological predilections of the American people, the essence of legitimacy is fundamentally altered. Consequently, we re-investigate the relationships among ideology, performance satisfaction, and Court legitimacy, unearthing empirical findings that diverge markedly from theirs. We conclude with some thoughts about how the Court’s “countermajoritarian dilemma” can be reconceptualized and recalculated, once more drawing conclusions sharply at odds with those of Bartels and Johnston.

After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?

Abstract: This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the opinion of an Advocate General.

How reliable are forensic evaluations of legal sanity

Abstract: When different clinicians evaluate the same criminal defendant's legal sanity, do they reach the same conclusion? Because Hawaii law requires multiple, independent evaluations when questions about legal sanity arise, Hawaii allows for the first contemporary study of the reliability of legal sanity opinions in routine practice in the United States. We examined 483 evaluation reports, addressing 165 criminal defendants, in which up to three forensic psychiatrists or psychologists offered independent opinions on a defendant's legal sanity. Evaluators reached unanimous agreement regarding legal sanity in only 55.1% of cases. Evaluators tended to disagree more often when a defendant was under the influence of drugs or alcohol at the time of the offense. But evaluators tended to agree more often when they agreed about diagnosing a psychotic disorder, or when the defendant had been psychiatrically hospitalized shortly before the offense. In court, judges followed the majority opinion among evaluators in 91% of cases. But when judges disagreed with the majority opinion, they usually did so to find defendants legally sane, rather than insane. Overall, this study indicates that reliability among practicing forensic evaluators addressing legal sanity may be poorer than the field has tended to assume. Although agreement appears more likely in some cases than others, the frequent disagreements suggest a need for improved training and practice.

Non-consensus Opinion Models on Complex Networks

Abstract: Social dynamic opinion models have been widely studied to understand how interactions among individuals cause opinions to evolve. Most opinion models that utilize spin interaction models usually produce a consensus steady state in which only one opinion exists. Because in reality different opinions usually coexist, we focus on non-consensus opinion models in which above a certain threshold two opinions coexist in a stable relationship. We revisit and extend the non-consensus opinion (NCO) model introduced by Shao et al. (Phys. Rev. Lett. 103:01870, 2009). The NCO model in random networks displays a second order phase transition that belongs to regular mean field percolation and is characterized by the appearance (above a certain threshold) of a large spanning cluster of the minority opinion. We generalize the NCO model by adding a weight factor W to each individual’s original opinion when determining their future opinion (NCOW model). We find that as W increases the minority opinion holders tend to form stable clusters with a smaller initial minority fraction than in the NCO model. We also revisit another non-consensus opinion model based on the NCO model, the inflexible contrarian opinion (ICO) model (Li et al. in Phys. Rev. E 84:066101, 2011), which introduces inflexible contrarians to model the competition between two opinions in a steady state. Inflexible contrarians are individuals that never change their original opinion but may influence the opinions of others. To place the inflexible contrarians in the ICO model we use two different strategies, random placement and one in which high-degree nodes are targeted. The inflexible contrarians effectively decrease the size of the largest rival-opinion cluster in both strategies, but the effect is more pronounced under the targeted method. All of the above models have previously been explored in terms of a single network, but human communities are usually interconnected, not isolated. Because opinions propagate not only within single networks but also between networks, and because the rules of opinion formation within a network may differ from those between networks, we study here the opinion dynamics in coupled networks. Each network represents a social group or community and the interdependent links joining individuals from different networks may be social ties that are unusually strong, e.g., married couples. We apply the non-consensus opinion (NCO) rule on each individual network and the global majority rule on interdependent pairs such that two interdependent agents with different opinions will, due to the influence of mass media, follow the majority opinion of the entire population. The opinion interactions within each network and the interdependent links across networks interlace periodically until a steady state is reached. We find that the interdependent links effectively force the system from a second order phase transition, which is characteristic of the NCO model on a single network, to a hybrid phase transition, i.e., a mix of second-order and abrupt jump-like transitions that ultimately becomes, as we increase the percentage of interdependent agents, a pure abrupt transition. We conclude that for the NCO model on coupled networks, interactions through interdependent links could push the non-consensus opinion model to a consensus opinion model, which mimics the reality that increased mass communication causes people to hold opinions that are increasingly similar. We also find that the effect of interdependent links is more pronounced in interdependent scale free networks than in interdependent Erdős Renyi networks.

Multiple Opinion Climates in Online Forums Role of Website Source Reference and Within-Forum Opinion Congruency

Abstract: Through the Spiral of Silence framework, this study examines the online opinion climate effect on individual willingness to post messages in forums, using a 2 × 2 experiment manipulating website source (mainstream news/ideologically homogeneous activist group) and opinion congruency (minority/majority opinion). Individuals’ willingness to post was affected only by their opinion congruency with those expressed in forums. Analysis revealed instances of individuals “speaking up” as compared to “speaking out.” Other deterrents to willingness to post were also uncovered.

How to Improve the Necessity Test of the European Court of Human Rights

Abstract: According to the case law of the European Court of Human Rights, interferences with rights protected by the European Convention on Human Rights can only be accepted if there is a proportionate relationship between the interference and its legitimate objectives, that is, if they are “necessary in a democratic society.” The Court has given shape to this test by developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons. However, these standards appear to be rather vague, and the Court’s case law on the test of “necessity” lacks transparence. For that reason, this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law. The article focuses on the use the Court might make of two particular elements of this test, that is, the test of suitability and the least-restrictive-means test. If applied correctly, the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning.

Media Coverage of the U.S. Supreme Court: How Do Journalists Assess the Importance of Court Decisions?

Abstract: Agenda-setting theory is central to understanding the connection between media and American government. Indeed, legislative and executive branches of American government are often characterized by their publicity-seeking behavior. This is not true of the judicial branch. However, the importance of media coverage is magnified for the United States Supreme Court because, lacking the public affairs mechanisms of the other two branches, the Court is dependent on media dissemination of information about its decisions. Despite this important role, little is known about what attracts media to cover Supreme Court cases. We ask what case characteristics attract media attention. We examine the effect of case variables on general media coverage of Court decisions (a concept we call “newsworthiness,” measured by whether mention of a given case decision appears on the front page of the New York Times) and on inclusion of a case on a list of legally significant cases over time (a concept we call “legal salience,” measu...

Final Judgment: The Last Law Lords and the Supreme Court

Abstract: The House of Lords, for over 300 years the UK's highest court, was transformed in 2009 into the UK Supreme Court. This book provides a compelling and unrivalled view into the workings of the Court during its final decade, and into the formative years of the Supreme Court. Drawing on over 100 interviews, including more than 40 with Law Lords and Justices, and uniquely, some of their judicial notebooks, this is a landmark study of appellate judging 'from the inside' by an author whose earlier work on the House of Lords has provided a scholarly benchmark for over 30 years.

State Supreme Court Decision Making in Confession Cases

Abstract: The federal nature of the American judiciary suggests that a state court of last resort may evade decisions of the U.S. Supreme Court if those decisions do not comport with the preferences of the state supreme court judges or are in conflict with the prevailing ethos in the state. We offer a multiple principal agency model of state supreme court decision making. We posit that the decisions of state high courts are influenced by their judicial (the U.S. Supreme Court) and political (state elites or electorates) principals, as well as by more conventional factors. We test our theory by using a stratified random sample of state court of last resort decisions regarding challenged confessions from 1970 to 1991. Our analysis supports the hypothesized influence of federal courts on state supreme courts. That influence transcends most of the known determinants of decision making on the state supreme courts. We conclude that state supreme courts defer to their judicial principal but do not hesitate to use federali...

Is Today’s Court the Most Conservative in Sixty Years? Challenges and Opportunities in Measuring Judicial Preferences

Abstract: Court scholars have a voracious appetite for Supreme Court preference measures. Several articles question whether widely used Martin and Quinn (2002, 2011) scores provide valid intertemporal measures, calling into question virtually an entire generation of quantitative research on the Court. This article discusses the challenges of intertemporal preference estimation and revises, updates, and extends Bailey and Maltzman (2011) to present Supreme Court preference estimates that are more defensibly comparable across time and institutions.

Source Cues and Public Support for the Supreme Court

Abstract: It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relatively fixed. This includes the extent to which the public views the Court as a legitimate institution, and thus one that should be granted high levels of judicial independence. Such theories would suggest that the public should not rely on source cues to inform their opinion about the level of independence the Court should hold. Using a series of survey experiments, we find that, conversely, partisan source cues significantly influence the public's support for judicial independence. These results have important implications for understanding the extent to which politicians can shape the public's overall support for judicial independence, as well as for assessing the degree to which the public views the Court as a "political" institution.

A Theory of Public Opinion

Abstract: This book traces the emergence of the ideas and institutions that evolved to give people mastery over their own destiny through the force of public opinion. The Greek belief in citizen participation is shown as the ground upon which the idea of public opinion began and grew. For Wilson, public opinion is an "orderly force," contributing to social and political life. Wilson appraises the influence of modern psychology and the slow appearance of methodologies that would enable people not only to measure the opinions of others, but to mold them as well. He examines the relation of the theory of public opinion to the intellectuals, the middle class, and the various revolutionary and proletarian movements of the modern era. The circumstances in which the individual may refuse to follow the opinions of the experts are succinctly and movingly analyzed. This book is a historical and philosophical evaluation of a concept that has played a decisive part in history, and whose overwhelming force is underestimated. The author's insight brings an understanding that is invaluable at a time when public opinion, the force developed to enable the ruled to restrain their rulers, has become controllable. Attempts to manipulate it are made by those who would impose their will upon their fellow men.

The Puzzle of Unanimity: Consensus on the United States Supreme Court

Abstract: The U.S. Supreme Court typically rules on cases that present complex legal questions. Given the challenging nature of its cases and the popular view that the Court is divided along ideological lines, it's commonly assumed that the Court routinely hands down equally-divided decisions. Yet the justices actually issue unanimous decisions in approximately one third of the cases they decide. Drawing on data from the U.S. Supreme Court database, internal court documents, and the justices' private papers, The Puzzle of Unanimity provides the first comprehensive account of how the Court reaches consensus. Pamela Corley, Amy Steigerwalt, and Artemus Ward propose and empirically test a theory of consensus; they find consensus is a function of multiple, concurrently-operating forces that cannot be fully accounted for by ideological attitudes. In this thorough investigation, the authors conclude that consensus is a function of the level of legal certainty and its ability to constrain justices' ideological preferences.

Strategic Citations to Precedent on the U.S. Supreme Court

Abstract: Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court’s bargaining process affects citations to precedent in the Court’s opinion. We find that the majority-opinion writer relies more heavily on precedent when the Court’s decision is accompanied by separate opinions. We also show that diversity of opinion on the Court, a factor often overlooked, has a significant relationship with citations to precedent. Finally, our results indicate that the ideology of the median justice influences citation practices more than ideology of the majority-opinion writer.

Dissensual Decision Making: Revisiting the Demise of Consensual Norms within the U.S. Supreme Court

Abstract: This analysis seeks to understand the decline of Supreme Court consensual norms often attributed to the failed leadership of Chief Justice Stone. A new unit of analysis—justice-level dissent and concurrence rates—supports an alternative view of observed increases in dissensual decision making. When these measures are estimated with time- series techniques, results offer evidence of multiple changepoints in this norm of the Court that both lead and lag Stone's elevation. Broader contextual explanations related to the alteration of the Court's discretionary issue agenda and its ideological and demographic composition also contribute to fractures in the once-unanimous voting coalitions.

An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

Abstract: While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court’s constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court’s legal holding and the relationship between the proposal and the public policy associated with the Court’s decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court’s decisions but is limited in its ability to overcome the Court’s legal rules. When members of Congress dislike an opinion announced by the United States Supreme Court, they can express their disapproval in several ways. Congressional responses range from the nearly costless issuance of public statements voicing criticism of the Court to the daunting task of shepherding proposed constitutional amendments through Congress in the hopes of sending amendments to the states that will overcome the Court’s constitutional interpretations. Other legislative proposals may reverse statutory interpretations adopted by the Supreme Court or revise policies that have been declared unconstitutional in the hopes of satisfying judicial scrutiny. Instead of attempting to alter the policy announced by the Court, members of Congress may engage in institutional attacks 1 designed to weaken the Court. I consider the use of ordinary legislation to limit or modify the impact of constitutional decisions of the Supreme Court. I call these proposals “policy-based responses” to differentiate them from institutional attacks, which are often assumed to be Congress’s preferred or only available vehicle for responding to the Court’s constitutional decisions. I argue that policy-based responses are a regular

“It’s the Network”: The Federalist Society as a Supplier of Intellectual Capital for the Supreme Court

Abstract: This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing the epistemic community framework, it demonstrates how network members, acting as amici curiae, litigators, academics, and judges worked to transmit intellectual capital to Supreme Court decision makers in 12 federalism and separation of powers cases decided between 1983 and 2001. It finds that Federalist Society members were most successful in diffusing ideas into Supreme Court opinions in cases where doctrinal distance was greatest; that is, cases where the Supreme Court moved the farthest from its established constitutional framework.

Diversity, Deliberation, and Judicial Opinion Writing

Abstract: Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997–2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.

Patent litigation in the UK: an empirical survey 2000–2008

Abstract: Over the course of this article we analyse the complete set of patent cases filed at the Patents Court in England and Wales during the period 2000–2008. The data cover all types of patent-related cases brought before the Patents County Court, the Patents Court at the High Court, the Court of Appeal, as well as the House of Lords/Supreme Court. We combine the detailed information on court cases with information on the patents in dispute as well as firm-level data for the litigating parties. Our analysis looks at patent cases from three different angles: litigant-level, patent-level, and case-level. In this respect we draw a number of conclusions about the types of claims brought, and by whom, as well as the value of the patents litigated and the case outcomes.

The Nature of the Judicial Process

Abstract: Contradictory decisions by the United States Supreme Court are motivated by the judicial ideology that the United States has unlimited authority. That pleases the court, although contradictory decisions exclude the Rule of Law, elements of which are principled decisions and foreseeable applications of principles, and although unlimited authority is in opposition to the Constitution.Rights are nullified by shifting constitutional boundaries. It used to be that a warrantless arrest had to be based on probable cause. Nowadays, an arrest (called a 'stop') may be based on suspicion. The constitutional right to be free from warrantless arrest absent probable cause was transformed by the Supreme Court into a license to be free to that extent.There was no way to foresee that the Supreme Court was going to adopt the policy that a warrantless arrest absent probable cause is constitutional. Supreme Court justices disregard the Constitution in consequence of the quid pro quo for judicial employment: tending to the needs of the United States. Consistency in decision-making means repeatedly benefiting the United States. Other considerations are secondary. The consequence is a plethora of contradictory decisions.The Supreme Court is a coterie of policy-makers, not a court. Decisions by the Supreme Court murdered the Constitution penned by the Framers. The lifeless parchment was mummified, and is maintained in a latter-day pyramid by the National Archives and Records Administration.What is to be done? Amendment of Article III is required. Four amendments to Article III are suggested. The amendments would generate reestablishment in the United States of constitutional government.

Judicial Independence and Opinion Clarity on State Supreme Courts

Abstract: We contribute to the literature on judicial independence and performance in the states by analyzing opinion clarity. Written opinions are the primary means of communication for state supreme court justices, and clarity is a core component of judicial performance. Using automated text analysis on a sample of state supreme court opinions from all fifty states, we find that variation in judicial retention systems is not associated with substantively meaningful differences in opinion clarity. Furthermore, elected judges do not seem to produce clearer opinions in salient cases notwithstanding the increased public visibility of those decisions. These results suggest that judges tend to conform to prevailing professional norms despite differing institutional constraints.

Majoritarian Judicial Review: The Case of Taiwan

Abstract: Conventional wisdom has it that judicial review is counter-majoritarian in the sense that it nullifies laws passed by the majority Yet despite the principal-agent issue of whether legislators faithfully fulfill their obligations, this is still a simplistic depiction and does not take into account when and where the majority is formed It simply assumes that public opinion does not change once the laws are passed, and judicial review around the globe functions in the same way This article tries to demonstrate that the Constitutional Court in Taiwan is indeed a majoritarian court from three perspectives: docket records, agenda-setting, and case studies This article argues that, owing to its institutional crisis, the Court sides with the majority most of the time in the sense that it rarely resists the contemporary congressional majority Consequently, judicial supremacy does exist in Taiwan, but simply because it is in accordance with the majority By contrast, judicial self-restraint, championed in many other countries as a virtue, is indeed counter-majoritarian This characteristic directly affects the likelihood of whether the Court can bring about political and social change in the future

New Data on State Supreme Court Cases

Abstract: The study of U.S. state supreme courts has been significantly constrained by a lack of available data. To remedy this deficiency, this article introduces an original data set of every state supreme...

Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices

Abstract: Do people accurately perceive the Supreme Court's ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires plac- ing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representa- tive of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative.

Human Rights Beyond Borders at the World Court: The Significance of the International Court of Justice's Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties

Abstract: This article uses the case study of the question of whether human rights treaty law applies extraterritorially as a means of exploring the general theme of the value of the International Court of Justice's involvement in human rights, when compared to such involvement by specialist human rights bodies. The Court's express pronouncements on the issue, in the Wall Advisory Opinion, the DRC v. Uganda judgment, and the Provisional Measures Order in Georgia v. Russia, as well as an earlier more general statement in the Namibia Advisory Opinion, are compared to determinations on the issue by specialist courts and tribunals. The article begins by setting out the broader historical context of the ICJ's involvement in human rights issues. It then analyses the different ways in which this involvement can be critically appraised, in the process making the case for the focus adopted herein, on a comparison between the role of the Court and that of specialist human rights tribunals on issues of meaning/interpretation rather than application/enforcement, and, within this, on comparative analysis concerned with the generalist/specialist distinction itself rather than the relative merits of positions taken on the substantive law. Such a focus is then deployed through a detailed critical evaluation of the Court's statements in the decisions indicated. Finally, the article summarizes the significance of the Court's determinations on the extraterritorial application of human rights law, and the broader relevance of these determinations for understanding the role of the ICJ in the field of human rights more generally.

Shelby County and the Illusion of Minimalism

Abstract: Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to determine which states and local governments must submit any proposed voting changes for federal approval (or “preclearance”) under Section 5. According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 NAMUDNO case, Congress “leaves us today with no choice.” “Striking an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’” The majority held that the coverage formula renewed by Congress without change in 2006 failed to take into account “current conditions” of discrimination in covered jurisdictions and failed to treat states with the “equal sovereignty” they deserved under the Tenth Amendment. Rather than strike down section 5, as Justice Thomas would have done, the Court “issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” The short opinion for the five most conservative Justices on the Court - only two-thirds the size of Justice Ginsburg’s dissent for the four most liberal Justices - casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO. The majority ostensibly stands ready for Congress’s next step. Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula. But the opinion is minimalist in a difference important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment’s history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified “equal sovereignty” principle, demeans the strength of Congress’s power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised but not resolved in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers. The opinion’s brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, “Hubris is a fit word for today’s demolition of the VRA.” Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters' story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention, and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act’s continuing constitutionality. While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court. Part I briefly describes the background of the Shelby County case, and in particular the questions left open in NAMUDNO. Part II analyzes the majority opinion, and explains the opinion as an act of false minimalism. Part III analyzes the dissenting opinion, and explains the dissent as one willfully silent about difficult constitutional questions. In the end, the dissenters had the better argument about the Act’s constitutionality, but the dissent would have been stronger had it described and grappled more forthrightly with the struggles over the VRA’s renewal and the dangers of political avoidance. Shelby County is important not just for the loss of preclearance, but the diminution of congressional power over voting rights in the future.

Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication

Abstract: In political science, the well-known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward-thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator—the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.

I Respectfully Dissent: Linking Judicial Voting Behavior, Media Coverage, and Public Responses in the Study of U.S. Supreme Court Decisions.

Abstract: .................................................................................................. viii