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.

The Supreme Court's Constitution: An Inquiry into Judicial Review and its Impact on Society

Abstract: The U.S. Court has exercised enormous influence on American society throughout its history. Although the Court is considered the guardian of the Constitution, the Constitution does not specifically set forth the Court's power to strike down federal or state legislation, nor does it provide guidance on how this power should be applied. In this critical examination of Supreme Court opinions, Bernard Siegan argues that the Court has frequently ruled both contrary to and without guidance from Constitutional meaning and purpose. He concludes that the U.S. Supreme Court has increasingly become more the maker than the interpreter of fundamental law. The author offers a detailed analysis of the Constitution and numerous Supreme Court cases involving controversial issues ranging from the line between federal and state powers to the validity of measures according to preferential treatment for minorities and women. The book is essential reading for everyone interested in understanding the differences between activist and literalist traditions in the high court.

High Court review 2003: the centenary year

Abstract: 2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal ...

Scholars and Judges: Reason and Power

Abstract: The just qadi (judge) will be brought on the Judgment Day, and confronted with such a harsh accounting that he will wish that he had never judged between any two, even as to a single date.(1) Judges are three: two in Fire, and one in Paradise. A man who has knowledge, and judges by what he knows -- he is in Paradise. A man who is ignorant, and judges according to his ignorance -- he is in the Fire. A man who has knowledge, and judges by something other than his knowledge -- he is in the Fire.(2) Last Fall I heard a news broadcast that the Massachusetts Supreme Judicial Court would that day hear argument in a suit by a man against his ex-wife to prevent her from having implanted in her frozen embryos created by them both while they were still married.(3) I remember my first, unreflecting reaction. It was as if scientists were nearing the carbon dating of a strange fossil, and so would settle once and for all the puzzle of dinosaur extinction. Then I realized how strange was my reflex. Just months before, I had been a member of that court, and if the case had come up earlier I might have been struggling to decide it with no more wisdom or knowledge than I had when I heard that broadcast. My instinctive reaction finds reflection in the pervasive near reverence with which the public and the profession treats judges and their opinions. Judicial opinions are not quite the exclusive diet of scholars and law teachers that they used to be, but we still teach much of the law out of case books excerpting judicial opinions. Legal scholarship is still largely about judicial opinions. Theories about what the law is -- the legal realists notwithstanding -- are still mainly about what judicial opinions have said about the law. Nowhere is this truer than in constitutional law. Constitutional theories are constructed based on the most exquisite parsing of judicial opinions, a task made more intricate by the proliferation of cases in which there is no opinion of the court so that scholars offer Venn diagram-like analyses to arrive at the maximum common content of separate opinions. Constitutional law is a text-based subject only in the sense that antitrust law is text-based. Antitrust law depends basically on three rather terse statutory provisions -- sections 1 and 2 of the Sherman Act(4) and section 12 of the Clayton Act;(5) yet, Professor Areeda's authoritative treatise has attained eleven volumes and is not yet complete.(6) Similarly, the text of the Constitution consists of some 68 sections and fills about fifteen pages in a standard constitutional law case book, yet there are now well over 500 volumes of Supreme Court cases, a large part of which deal with constitutional issues and announce constitutional law. Professor Tribe's constitutional law treatise, now in its third edition, runs over 1300 pages of small type in the first volume alone.(7) Clearly, constitutional law is judge-made law. It is not only judge-made law, but its main lines are set out by one court, the Supreme Court. Thus, it is on that Court that I focus in this Essay. In this respect, constitutional law resembles the English common law of contract or tort.(8) There are, however, these differences: Rules of constitutional law are generally about far more fundamental matters than any particular rule of tort or contract law, and legislatures cannot override these constitutional rules without amending the Constitution. So it is no surprise that the Supreme Court is held in such awe -- power has that effect -- but it is also true that the Court from the beginning has conducted itself with a degree of circumspection, dignity, and conscientiousness that has enhanced this natural tendency to venerate power, while giving little ground for the equal and opposite tendency first to gossip about and then to deprecate any institution or person who is the subject of official veneration. Perhaps no institution of our government does its work at once so discretely and so openly. …