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.

Framing Supreme Court Decisions The Mainstream Versus the Black Press

Abstract: The Supreme Court regularly makes decisions with profound policy implications, but it largely leaves it to others to shape public opinion regarding those policies. The media play an important role ...

Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts

Abstract: (ProQuest Information and Learning: ... denotes text missing in the original.) I. INTRODUCTION A popular myth in American constitutional law is that the "strict scrutiny" standard of review applied to enforce rights such as free speech and equal protection is "'strict' in theory and fatal in fact."1 This phrase, coined by the late legal scholar Gerald Gunther in 1972, has been called "one of the most famous epithets in American constitutional law"2 and has effectively defined the strict scrutiny standard in the minds of lawyers for two generations. Born of Gunther's observation, supported by the iconic decisions of the Warren Court, and reinforced in constitutional law teaching and scholarship, the myth teaches that strict scrutiny is an "inflexible"3 rule that invalidates every (or nearly every) law to which it applies.4 In recent years, however, this traditional understanding of strict scrutiny's inevitable deadliness has been challenged, most notably by Justice Sandra Day O'Connor. In Adarand Constructors v. Pena, O'Connor's majority opinion expressed the "wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact."'5 The fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying" that standard.6 In Grutier v. Bollinger, O'Connor's opinion for the Court turned wish into action and upheld an affirmative action policy under strict scrutiny.7 Rather than create insurmountable hurdles that indiscriminately invalidate laws, O'Connor argued, the "fundamental purpose" of strict scrutiny is to "take relevant differences into account."8 In short, when applying strict scrutiny, "[c]ontext matters."9 This Article contributes to this debate by offering a systematic empirical study of strict scrutiny in the federal courts. Reporting the results of a census of every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003, this study shows that strict scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the context-sensitive tool described by O'Connor. Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of law in which they use the test. Overall, 30 percent of all applications of strict scrutiny-nearly one in three-result in the challenged law being upheld. Rather than "fatal in fact," strict scrutiny is survivable in fact. This Article begins, in Part II, by defining the strict scrutiny standard and tracing its theoretical underpinnings. Both the standard's formal terms and its underlying justifications leave ample room for laws to be upheld-hence, Gunther's premise of "strict in theory." Yet, in the Warren Court, the standard appeared to be "fatal in fact" as rigorous review was employed to invalidate laws at seemingly every turn. Coming on the heels of the Warren Court, Gunther's quotable phrase crystallized the notion that strict scrutiny was always (or nearly always) deadly. This view of strict scrutiny is common, although as Justice O'Connor's statements suggest, it has recently been subject to challenge. In addition to Justice O'Connor, a number of academics have argued that the traditionally rigid tiers of scrutiny so popular in American constitutionalism are softening. Part III lays out the methodology of the empirical study and reports the general results. A key assumption underlying the decision to study all federal court decisions applying strict scrutiny is that constitutional law cannot be fully understood by looking only at the Supreme Court and its decisions. American constitutional law scholarship focuses almost exclusively on the Supreme Court, with little attention to the lower federal courts. While the Supreme Court sets the ground rules for judicial review, the lower courts are where those rules are most often applied to specific facts and particular laws. …

Splitting the Difference: Modeling Appellate Court Decisions with Mixed Outcomes

Abstract: In rendering a decision in a particular case, judges are not limited to finding simply for the appellant or for the respondent. Rather, in many cases, they have the option to find for the former on one or more issues and for the latter on one or more other issues. By thus ‘‘splitting the difference,’’ judges can render a judgment that favors both litigants to some degree. What accounts for such mixed outcomes? Several theoretical perspectives provide potential explanations for this phenomenon. First, Galanter (1974) suggests that litigants with greater resources will achieve more favorable outcomes in the courts. Where two high-resource, repeat-player litigants meet in the appeals courts, these more sophisticated and successful parties may be able to persuade the court to render decisions with mixed outcomes that at least partially favor each party. Second, split outcomes may result from strategic interactions among the appeals court judges on the decisionmaking panel. Where majority opinion writers seek to accommodate other judges on the panel, split outcomes have the potential to serve as an inducement for more ideologically extreme judges to join the majority opinion. Finally, Shapiro and Stone Sweet (Stone Sweet 2000; Shapiro & Stone Sweet 2002) propose that courts will sometimes split the difference in order to enhance their legitimacy (and ultimately enhance compliance by losing parties). For example, in highly salient cases, where noncompliance would more clearly threaten court legitimacy, judges may be more likely to split the difference in order to mollify even the losing party. We develop an empirical model of mixed outcomes to test these propositions using data available from the U. S. Courts of Appeals Database and find evidence supportive of all three theoretical perspectives.

Articles of Faith: Religion, Secularism, and the Indian Supreme Court

Abstract: 1. Introduction 2. .Defining Religion: The Supreme Court and Hinduism 3. The Doctrine of Essential Practices: The Judges Shape a Rational Hinduism 4. In the Name of God: Regulating Religion in Elections 5. Good Citizens: Religion and Educational Institutions 6. Boundaries of Faith: The Court and Conversion 7. Imposing legal Uniformity: The Court and Muslim Minority Rights 8. Judging Religion: A Nehruvian in Court 9. Conclusion Bibliography