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.

A New Birth of Freedom? Obergefell V. Hodges

Abstract: The decision in Obergefell v. Hodges (1) achieved canonical status even as Justice Kennedy read the result from the bench. A bare majority held that the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex. (2) The majority opinion ended with these ringing words about the plaintiffs: "Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." (3) While Obergefell's most immediate effect was to legalize same-sex marriage across the land, its long-term impact could extend far beyond this context. To see this point, consider how much more narrowly the opinion could have been written. It could have invoked the equal protection and due process guarantees without specifying a formal level of review, and then observed that none of the state justifications survived even a deferential form of scrutiny. The Court had adopted this strategy in prior gay rights cases. (4) Instead, the Court issued a sweeping statement that could be compared to Loving v. Virginia, (5) the 1967 case that invalidated bans on interracial marriage. (6) Like Loving, Obergefell held that the marriage bans at issue not only violated the Due Process Clause but also violated the Equal Protection Clause. (7) Yet Obergefell differed from Loving in two important respects. Where Loving emphasized equality over liberty, (8) Obergefell made liberty the figure and equality the ground. (9) Obergefell also placed a far stronger emphasis on the intertwined nature of liberty and equality. (10) In doing so, Obergefell became something even more than a landmark civil rights decision. It became a game changer for substantive due process jurisprudence. This Comment will discuss how Obergefell opened new ground in that great debate. I. LIBERTY BOUND For well over a century, the Court has grappled with what unenumerated rights are protected under the due process guarantees of the Fifth and Fourteenth Amendments. (11) The Court has rejected positions at both extremes. On the one hand, the position that the Constitution protects no unenumerated rights leads to embarrassments of various kinds. The Ninth Amendment provides textual assurance of the existence of unenumerated rights. (12) And as a practical matter, the Court has recognized many unenumerated rights--including the right to direct the education and upbringing of one's children, (13) the right to procreate, (14) the right to bodily integrity, (15) the right to use contraception, (16) the right to abortion, (17) the right to sexual intimacy, (18) and, yes, the right to marry. (19) On the other hand, the Court has rejected the position that it has unfettered discretion to conjure unenumerated rights, noting that it "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended." (20) We are arguing over the difficult middle in this area of law. In shaping that middle ground, the Court has articulated two contrasting approaches. One is an open-ended common law approach widely associated with Justice Harlan's dissent in Poe v. Ullman (21) (a dissent given precedential weight by its adoption by a majority of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (22)). The other is a more closed-ended formulaic approach associated with the majority in Washington v. Glucksberg. (23) Obergefell did not categorically resolve the ongoing conflict between the two models, but it heavily favored Poe. Decided in 1961, Poe concerned a criminal ban on the use of contraception. (24) The Court dodged the issue of whether the law violated the Constitution by deeming the case nonjusticiable on standing and ripeness grounds. In dissent, Justice Harlan maintained that the Court should have reached the merits, and used the occasion to articulate standards for when a right could be deemed protected under the due process guarantees. …

From Judge to Justice: Social Background Theory and the Supreme Court

Abstract: The Roberts Court Justices already have revealed many differences from one another, but they also share a (possibly) significant commonality: Presidents promoted all of them to the U.S. Supreme Court from the U.S. Courts of Appeals. This means, of course, that they initially learned how to be judges while serving on a circuit court. How might the Justices' common route to the Court affect their actions on it? Social background theory hypothesizes that prior experience influences subsequent behavior such as voting, opinion writing, and coalition formation. This Article empirically analyzes promotion to the Supreme Court and examines the implications of promotion in light of the social background theory.

China's Supreme Court

Abstract: 1. The Supreme People's Court in China's Struggle for the Rule of Law 2. The Pragmatic Formatting of 'Justice and Efficiency' 3. The Supreme People's Court and the Local Courts 4. The Supreme People's Court and Recent Death Penalty Reforms 5. The Supreme People's Court, Judicial Review and Transparency 6. The Supreme People's Court: Between power and principle.