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 and Percolation in the Lower Courts: An Optimal Stopping Model

Abstract: The most prominent of the few stated criteria by which the Supreme Court decides to hear a case is the existence of a conflict among the lower courts. However, a lower court split does not automatically lead the Supreme Court to review a case, and the justices have often allowed lower court splits - and thereby the application of different legal standards across the country - to stand for long periods of time. What explains the Court's tolerance of conflict, and its eventual decision to resolve it? We model the Supreme Court's decision to intervene in a conflict as an optimal stopping problem. The Court faces a strategic trade-off between allowing conflict to continue while it learns about the implications of the possible policy choices and intervening to end a costly conflict between the lower courts. Our model provides the first theoretical framework for understanding when and how the Court decides to resolve lower court conflict.

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Abstract: To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics—that is, as “just another political institution”—can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants—ideological dissatisfaction, legal realism, and perceptions of judicial politicization—combine to structure judicial legitimacy. Understanding the difference between perceptions of an “ideological” Court versus a “politicized” Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings’ implications for the upcoming highly politicized battles over nominations to the high bench.

The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition

Abstract: Table of ContentsI. Introduction 1470II. A Brief Review of U.S. Supreme Court Jurisprudence on the Death Penalty and Mental Illness 1473III. The Death Penalty in International Human Rights Law and Practice: Toward Abolition 1477IV. Some Methodological Challenges in Documentation of Mental Illness and Death Penalty Issues in International Law 1481V. The Evolving Jurisprudence on the Death Penalty and Mental Illness Under International Human Rights Law 1485A. Support for a Ban on Execution of Persons with Any Mental Impairment 1489B. Support for a Ban on Execution of Persons with Severe Mental Impairment 1494VI. Conclusion 1498I. IntroductionThis symposium primarily focuses on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration. Prior to the conference, my only acquaintance with the Giarratano case was the decision in Murray v. Giarratano1-the U.S. Supreme Court decision holding that the Sixth Amendment right to appointed counsel does not extend to the post-conviction stages of death penalty litigation.2 The symposium provided a much broader perspective on the saga of Joe Giarratano, whose own legal skills parallel those of the many lawyers involved in his representation. My particular panel was one focused on mental illness and the death penalty, which, as other panelists made evident, was deeply implicated in the Giarratano case as well. My participation in the panel, however, was intended to offer a broader perspective on the issue, indeed the only international law perspective on the array of issues discussed during the symposium. This Article addresses the question of what international human rights law has to say about the death penalty in general, as well as the evolving views of the international community as to how mental illness may, or should, bar the imposition and carrying out of the death penalty.Issues about mental illness and the death penalty remain unresolved at the constitutional level in the United States, despite a number of U.S. Supreme Court decisions addressing the topic, as will be addressed below.3 It is conservatively estimated that some five to ten percent of all inmates on death row suffer from some form of mental illness.4 In a book published in 2014, I predicted that the next issue to be addressed by the U.S. Supreme Court-in its gradual chipping away at the death penalty in the United States-would be whether mental illness, other than insanity, should bar the imposition of capital punishment under the Eighth Amendment to the Constitution.5 I am not alone in this prediction.6 Despite the death of Justice Antonin Scalia, and the apparent impasse as to the Senate review and confirmation of his successor, I continue to believe that the Court will soon take up this important question.The Court again addressed the contentious issue of lethal injection as a method of execution in its 2015 decision Glossip v. Gross7-a decision more noteworthy for its dissents than its majority opinion. In a far-reaching and exhaustive analysis, Justice Breyer, joined by Justice Ginsburg, concluded that "the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'"8 That opinion coincides with the arc of justice in the international community where the law, standards, and practice bend strongly toward abolition.9 This Article will broadly examine the question of how international human rights law looks at the death penalty generally, as well as the context of those who are mentally ill on death row. …

The Supreme Court Bar: Legal Elites in the Washington Community

Abstract: Who represents litigants in the Supreme Court of the United States? Kevin T. McGuire shows that the most sophisticated of them have the advantage of representation by an elite counsel made up of former clerks to the justices, alumni of the Office of the Solicitor General, partners in powerful Washington law firms, and public interest lawyers, all of whom serve as gatekeepers to the Court.In this study, the first to characterize the bar of the Supreme Court as a whole, McGuire uses survey, archival, and interview data to explore the history and social structure of the community of Supreme Court specialists. In so doing, he assesses the strategic politics of Supreme Court practice, the ways in which dominant litigators can shape the Court's decisions, and what the existence of such an elite implies for judicial fairness.