Showing papers on "Plurality opinion published in 2004"

Strategic Voting for Damage Control On the Supreme Court

Abstract: Prominent scholars argue that the Supreme Court justices vote insincerely and in favor of the majority at the conference vote in order to obtain either damage control over the content of the majority opinion or to conform to the majority. Those justices who cast their vote late in the order of voting at the conference are in a better position to behave this way because they are more likely to know which side will win. Using Spaeth’s Burger Court dataset we examine whether there is a statistical association between the order of voting of the justices and the extent to which they joined the winning coalition at the conference vote. We find little evidence of such an association using either bivariate or multivariate techniques and conclude that such behavior is exceedingly rare.

Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth

Abstract: In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such "partisan gerrymandering" claims were justiciable resulted in virtually no successful claims in the lower courts.In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a "judicially manageable" standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

Prejudiced by the Presence of God:Keeping Religious Material Out ofDeath Penalty Deliberations

Abstract: of Washington, June 2002. The author would like to thank his wife, Hannah Egland, without whose support he would not succeed. The author is also indebted to Professors Roger Groot, Ronald Krotoszynski, Darryl Brown, and the members of the Virginia Capital Case Clearinghouse, especially Janice Kopec and Meghan Morgan, whose dedication and willingness to help never ceases to amaze. And, as always, the author is grateful for the love and support of his parents through years of questionable decisions and aimless wanderings. 1. Michael Graczyk, Texas Executes Karla Tucker: Texas Gov. George Bush and the U.S. Supreme Court Refused to Stop the Execution, YORK DAILY REC., Feb. 4, 1998, at A4, available at 1998 WL 6211038. This line was delivered by then-Texas Governor George W. Bush in an announcement denying Karla Faye Tucker’s request for a pardon. Id. Governor Bush concluded by saying, “May God bless Karla Faye Tucker and God bless her victims and their families.” Id. 2. Gregg v. Georgia, 428 U.S. 153, 188 (1976) (plurality opinion) (citing Furman v. Georgia, 408 U.S. 238, 313 (1972)) (recognizing “that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice”). 3. See Gregory M. Ashley, Note, Theology in the Jury Room: Religious Discussion as “Extraneous Material” in the Course of Capital Punishment Deliberations, 55 VAND. L. REV. 127, 136 (2002) (“The jury system is ingrained in the American criminal forum to such a degree that administering our criminal law system without it is unthinkable.” (internal quotation marks omitted)). The United States Supreme Court, through a long line of cases, has protected the primacy of the jury as finder of fact except in the two following instances: (1) the presence of extraneous material in deliberations; and (2) outside influence on the jury. See Parker v. Gladden, 385 U.S. 363, 365 (1966) (finding outside

Reconsidering the Rule of Law: Reflections on Power, Politics, and Partisan Gerrymandering

Abstract: This Article argues that the Supreme Court’s partisan redistricting decision in Vieth v. Jubelirer implicated a central feature of liberal constitutionalism — the rule of law. Specifically, I claim that the plurality’s decision in Vieth embodied the conventional understanding of the rule of law in American jurisprudence. Under the conventional view, the rule of law is viewed as being primarily concerned with ensuring predictability. A stable set of general rules is indispensable for enabling individuals to coordinate their activities and make plans for the future. In Vieth, a four-member plurality, led by Justice Scalia, held that there was a lack of “judicially discoverable and manageable standards” for deciding whether Pennsylvania’s redistricting map was unconstitutional. In keeping with the conventional understanding of the rule of law, Justice Scalia’s plurality opinion in Vieth repeatedly emphasized the need for principled and predictable judicial decision-making. This Article argues, however, that the conventional understanding of the rule of law is overly narrow. Although predictability is an important value, I show that the conventional view largely overlooks a fundamental purpose of the rule of law — protecting citizens from the abuse of power by the government. In other words, the primary objective of the rule of law is not predictability; it is protecting citizens against the arbitrary and tyrannical exercise of state power. This conception of the rule of law, which can be traced back to Locke, has important implications for deciding when and how the rule of law has been violated by judicial or legislative action. Although the Court’s refusal to intervene in Vieth may be viewed as upholding the rule of law, this Article shows that the judicial refusal to intervene can, paradoxically, also amount to a violation of the rule of law. In addition, this Article considers whether the practice of partisan gerrymandering itself constitutes a rule-of-law violation.