Majority opinion

About: Majority opinion is a research topic. Over the lifetime, 4107 publications have been published within this topic receiving 54845 citations. The topic is also known as: opinion of the court.

Toward and Beyond a Theory of Supreme Court Impact

Abstract: It is often presumed that the hierarchical organization of the American judiciary centralizes much lawmaking authority within appellate courts and that trial courts generally defer to the Supreme Court in deciding cases of constitutional law. The operation of this role constraint on lower courts is illustrated by the Indiana Supreme Court’s reaction to Henry Miller’s Tropic of Cancer, which was involved in a local obscenity case. After expressing distaste for the book, the Indiana Court deferred to the authority of the superordinate court and reversed the conviction:

West Virginia State Board of Education V. Barnette, 319 U.S. 624 (1943)

Abstract: This entry in the Encyclopedia of the Supreme Court of the United States (David S. Tanenbaus, Editor-in-Chief) discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).Barnette held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance. The case marks an important moment in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Jackson's majority opinion and in Justice Frankfurter's vehement and unusually autobiographical dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity.My short essay discusses, among other things, Barnette's relationship to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which it overruled; the decision's major doctrinal import for establishing that the guarantee of free speech embraces, not just the right to speak, but the right to refrain from enforced speech; its much lesser significance to the law of free exercise of religion; the role the case played in the jurisprudential and often personal tension on the Court over questions of judicial restraint and constitutional method; and the different views represented in the majority and dissenting opinions, and very much alive in a continuing American debate, over the nature and central themes of American patriotism and the ability of the American community to move beyond a purely "proceduralist" conception of itself and its deepest values.

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. …

Judging democracy in Pakistan: Conflict between the executive and judiciary

Abstract: This article deals with the judicialization of politics in Pakistan under the Supreme Court Chief Justice Choudhry (2009–). Confrontation between the executive and judiciary under him led to speculation about the imminent collapse of the democratic system, given the history of military take-over in the country. The use of judicial review, whereby the Court exercised the power of interpreting the Constitution with impunity, was widely criticized as an attempt to encroach on the territory of the legislature through case law. At the institutional level, the Court sought to exercise veto power over the appointment of judges and to deny the right of oversight to any government agency. The Court's pursuit of public interest litigation through frequent suo motu actions taken in a populist mode led to brinkmanship on the part of the executive and judiciary. Despite this power play, the Court's operations fell into the category of modus operandi, instead of being a fight to the finish. However, the Court's pursuit...

Reading between the Lines: Analyzing the Supreme Court’s Views on Gender Discrimination in Employment, 1971–1982

Abstract: Supreme Court decisions can be read on two levels: as prescriptive statements of what legally can or cannot be done and as discourses that define the Court’s view of social problems. This article explores this latter role through a content analysis of Court decisions that directly address the struggle for women’s equality in the workplace during the 1970s. As it formulated the legal rules applicable to gender discrimination, the Court also gave social and political meaning to the concept of equality. Examining this process of problem definition in the judicial arena provides a different perspective for viewing Supreme Court decisions.