Showing papers on "Plurality opinion published in 2008"

State Public Opinion, the Death Penalty, and the Practice of Electing Judges

Abstract: Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.

The Supreme Court and Opinion Content The Influence of Parties' Briefs

Abstract: Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of op...

Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting and Adjudication Equilibria

Abstract: We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new directions for empirical work on judicial politics.

What Makes a Judgment "Liberal"? Coding Bias in the United States Supreme Court Judicial Database

Abstract: This paper analyzes the validity of the widely used liberal/conservative judgment and vote "direction" variables reported in the United States Supreme Court Judicial Database (USSCJD). Leveraging information about a subset of cases in the USSCJD, namely those involving the constitutional review of congressional statutes, the paper shows that the USSCJD judgment variable is significantly more responsive to information highlighted in the Court's opinion, such as the identity of the majority opinion author, and significantly less responsive to factors not as conspicuously featured in the Court's opinion, such as the identity of the median Justice, or the composition of congressional preferences, relative to a broad range of alternative measures of the ideology of the Court's judgments. These findings are consistent with the presence of significant measurement bias in the USSCJD.

Giles v. California: Sixth Amendment Confrontation Right, Forfeiture by Wrongdoing, and a Misguided Departure from the Common Law and the Constitution

Abstract: The debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment has been lively in recent years. The United States Supreme Court addressed a key confrontation issue definitively during its most recent term when it issued a controversial opinion in Giles v. California, 128 S. Ct. 2678 (2008). The latest issue before the United States Supreme Court was whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. State courts had been split on this point for a number of years. Many, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), overruled in, 128 S. Ct. 976 (2008), rejected the element of intent. Conversely, some, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), mandated the inclusion of the element of intent. The United States Supreme Court sided with the seeming minority view and held that unconfronted out-of-court statements are admissible only where the witness is unavailable as a direct result of the conduct that was intended by the accused to render the witness unavailable for live in-court testimony.In this article, we contend that the common law does not support the inclusion of the element of intent in the forfeiture analysis under the Sixth Amendment. Justice Scalia's plurality opinion in Giles misreads the common law cases as requiring an intent to procure unavailability for application of the forfeiture by wrongdoing exception. Our analysis of the historical record will demonstrate that the English common law judges who fashioned the forfeiture doctrine and American courts that further explained the principle did not make intent to render unavailable an element of the confrontation exception.

The First Justice Harlan

Abstract: As a scholar of constitutional law and educational policy, I have been busy trying to sort out a recent Supreme Court decision that lies at the nexus of these areas. I am referring to the Seattle and Louisville voluntary school desegregation cases decided in Parents Involved in Community Schools v. Seattle School District No. 1.1 There is a lot to say about the 185 pages of opinions comprising the decision, and you are very brave to let me appear before you with no red or yellow lights on the podium. Actually, my purpose is not to discuss Parents Involved in any detail (I have analyzed it elsewhere2), but rather to focus on a Supreme Court Justice who had a quite palpable presence in the decision. The person I have in mind is not Chief Justice Roberts, whose plurality opinion all but rewrote the history of Brown v. Board of Education;3 not Justice Breyer, whose eloquent dissent sought to keep alive Brown's promise of "one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live";4 and not Justice Kennedy, whose swing opinion rejected colorblindness in student assignment but limited the options available to school officials to achieve integration.5

Not Hearing History: A Critique of Chief Justice Roberts's Reinterpretation of Brown

Abstract: In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting isolated sentences from the attorneys’ argument from their linguistic context. The discussion of Brown advanced a fallacious reading of the opinion. The discussion, though a relatively small part of the opinion, reflected a distressing and opportunistic use of history in an effort to justify a “color blind” vision of the Constitution. Rather than manipulating history to support doctrinal preferences, constitutional argument is more likely to produce enlightened doctrine, in this and other areas, if it addresses the moral and pragmatic considerations underlying competing positions.

What the Hein Decision Can Tell Us About the Roberts Court and the Establishment Clause

Abstract: This extended essay plays off the Supreme Court's recent decision in Hein v Freedom From Religion Foundation, Inc, 127 S Ct 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach the establishment clause and the judiciary's role in policing government support for religion The essay also demonstrates how what the Court terms a "generalized grievance" for which justiciability is denied unless Flast permits taxpayer standing, necessarily involves a claim where a structural clause of the Constitution is said to be violated rather than a rights-based claim The above issues are all the more interesting because so far Hein is the only church-state case to come before the Supreme Court since the two newest justices, Chief Justice Roberts and Justice Alito, were appointed

John Calmore’s America

Abstract: In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify the unspoken past in Parents Involved; challenge the paradigmatic present embodied in its plurality opinion; and then envision the uncreated future. In narrating the unspoken past, Professors Chang and Smith focus on Seattle. They examine the way that segregated neighborhoods and schools were created at the national level and in Seattle. They pay particular attention to the different histories of the different racial groups to show how a segregated Seattle was created and how the Seattle of today, though having a greater level of integration than before, remains a city where Whites are the most racially isolated group, which in turn produces a Seattle with largely segregated schools. In challenging this paradigmatic present, Professors Chang and Smith critique the way that housing choices that produce segregated outcomes is shielded from constitutional scrutiny are labeled as private choice, a characterization that is part of what Calmore criticizes as the neoconservative colorblind constitution. As they envision the uncreated future, Professors Chang and Smith draw from Professor Calmore's work on coalition building in a multiracial, multicultural world. They discuss the challenges that lie in store for people of color and for Whites. For people of color, one challenge is moving beyond the Black-White racial paradigm; for Whites, a primary challenge, one that is often overlooked, is overcoming White racial bonding. They argue that Professor Calmore's methodology - clarifying the unspoken past, critiquing the paradigmatic present, and envisioning the uncreated future - can help us to figure out what must be done to achieve the kind of America that is consistent with its best aspirations, the kind of America that Professor Calmore has worked so hard to achieve.

Ball on a Needle: Hein v. Freedom from Religion Foundation, Inc. and the Future of Establishment Clause Adjudication

Abstract: Amidst a flurry of controversial decisions in the final days of the 2006-2007 Term,1 the Supreme Court delivered its opinions in Hein v. Freedom from Religion Foundation, Inc.2 For several reasons, Hein attracted considerably less attention than the other decisions at Term's end, all of which were seen as manifesting the Court's general rightward turn.3 First, Hein involved the seemingly arcane and relatively inaccessible subject of taxpayer standing to sue in the federal courts. Second, the underlying facts in Hein presented a weak and intuitively unappealing claim that the federal government had acted unconstitutionally in holding regional conferences to promote the President's Faith-Based and Community Initiative. This was a lawsuit destined to go nowhere, even if the Supreme Court had affirmed the Seventh Circuit's decision to uphold taxpayer standing in the case.4 Moreover, the significance of Hein may have been obscured by the fact that the Supreme Court splintered into three groups and produced no majority opinion. In rejecting taxpayer standing in this case, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, relied heavily and explicitly on the character of the challenged conferences as executive rather than legislative.5 This, they concluded, served to distinguish Hein from Flast v. Cohen,6 the Court's most prominent precedent upholding taxpayer standing in Establishment Clause cases.7 But none of the other six Justices accepted this distinction. Justices Scalia and Thomas concurred in the result but rejected the plurality's distinction between executive and legislative spending.8 Instead, they joined in a separate opinion that urged the Court to overrule Flast and end what they viewed as the anomalous concept of taxpayer standing in Establishment Clause cases.9 In an opinion by Justice Souter, the four dissenters also repudiated the executive-legislative distinction on which the plurality opinion rested,10 but the dissenters concluded that the Court should affirm the Seventh Circuit's holding in favor of taxpayer standing.11 Far more than may appear on the surface, the outcome and opinions in Hein are likely to reverberate heavily through the process of Establishment Clause adjudication. Indeed, the fall-out from Hein was quick and dramatic: 1) A few days after releasing Hein, the Supreme Court vacated and remanded for reconsideration a decision that permitted taxpayers to seek an order to the University of Notre Dame to reimburse the United States for funds that allegedly had been spent in violation of the Establishment Clause.12 The challenged program had ended, and the case would have been moot but for the highly controversial reimbursement remedy authorized by the appellate court.13 2) That same week, the Department of Justice invoked Hein when it asked the Seventh Circuit to dismiss an appeal involving a taxpayer challenge to the Veterans Administration's policies and practices concerning chaplains in VA hospitals.14 Prior to the Court's opinion in Hein, the government had defended the VA case on its merits, and had not bothered to challenge the taxpayer plaintiffs' standing in the district court.15 3) Several weeks later, the Freedom from Religion Foundation ("FFRF") abandoned its twenty-month-old lawsuit against a faith-based rehabilitation program in the New Mexico prison system after a district court judge indicated that he was likely to dismiss the case for lack of taxpayer standing.16 4) In late July, in Doe v. Tangipahoa Parish School District,17 a narrowly (8-7) and bitterly divided Fifth Circuit decided en banc to dismiss on standing grounds a lawsuit that challenged the practice of beginning local school board meetings with a prayer. The Tangipahoa case did not involve taxpayer standing; instead, the plaintiff's standing rested on allegations of attendance at school board meetings by a parent whose children were enrolled in the local public schools. …

Our Fractured Supreme Court

Abstract: SHORTLY AFTER TAKING office, Chief Justice John Roberts embarked on a campaign within the Court and, unusually, in the press, to revive the tradition of unanimity in Supreme Court decisions. He has spoken of his concern that the Supreme Court is losing its legitimacy in the public's mind because of the frequency of dissenting opinions, arguing that this diminishes the respect and acceptance its decisions receive, and that the Court's public standing is enhanced if its decisions are unanimous, or nearly so. For example, in a lengthy interview with legal journalist Jeffrey Rosen published last year in the Atlantic, he suggested that "the Court is ... ripe for a ... refocus on functioning as an institution, because if it doesn't it's going to lose its credibility and legitimacy as an institution." The chief justice harked back to the early days of the Supreme Court under the leadership of John Marshall who, among other things, led the Court to adopt as consistently as possible the practice of speaking with a single voice. Not infrequently, the voice was that of Marshall himself, but the point is that the Court decided cases unanimously, without dissents and concurrences. The chief justice's campaign is conservative in the strict sense: There can be no dispute that fractionated decisions used to be a rarity and have become commonplace on the Court. Until the early 1940s, there were fewer than ten dissenting opinions for every 100 issued by the Court; after 1941, that figure increased sevenfold, and has remained at that level or higher ever since. The justices' work product increasingly consists more of composing dissents and concurrences than of writing opinions for the Court: until 1941, 80 to 90 percent of all opinions were opinions for the Court; now the number is less than 50 percent. More than a third of its 68 rulings in 2006-07 were decided by a 5-4 margin--and others by less lopsided, but still nonunanimous, votes--with separate opinions proliferating like mushrooms after a summer rain. At the extreme, this proliferation of opinions makes a joke of the Court's core function, "to say what the law is," in Chief Justice Marshall's phrase. Better than any statistics is the following verbatim excerpt from the Supreme Court's reports, published some years ago by the New Yorker, without comment, under the heading "The Jurisprudential Life": Blackmun, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which Brennan, Marshall, Stevens, and O'Connor, JJ., joined, an opinion with respect to Parts I and II, in which O'Connor and Stevens, JJ., joined, an opinion with respect to Part III-B, in which Stevens, J., joined, and an opinion with respect to Part VI. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which Brennan and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and Scalia, JJ., joined. This was how the modern Court "decided" a case involving important issues relating to when a Christmas creche could be displayed on public property. In calling for consensus on the Court, Chief Justice Roberts has on his side the overwhelming majority of the people who have served as justices during its history. Indeed, so much was consensus the norm prior to the 1940s that there was a flavor of ethical breach associated with dissent. For example, Canon 19 of the 1924 Canons of Judicial Ethics directed the members of "courts of last resort" to "use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. …

John Calmore's America

Abstract: In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify the unspoken past in Parents Involved; challenge the paradigmatic present embodied in its plurality opinion; and then envision the uncreated future. In narrating the unspoken past, Professors Chang and Smith focus on Seattle. They examine the way that segregated neighborhoods and schools were created at the national level and in Seattle. They pay particular attention to the different histories of the different racial groups to show how a segregated Seattle was created and how the Seattle of today, though having a greater level of integration than before, remains a city where Whites are the most racially isolated group, which in turn produces a Seattle with largely segregated schools. In challenging this paradigmatic present, Professors Chang and Smith critique the way that housing choices that produce segregated outcomes is shielded from constitutional scrutiny are labeled as private choice, a characterization that is part of what Calmore criticizes as the neoconservative colorblind constitution. As they envision the uncreated future, Professors Chang and Smith draw from Professor Calmore's work on coalition building in a multiracial, multicultural world. They discuss the challenges that lie in store for people of color and for Whites. For people of color, one challenge is moving beyond the Black-White racial paradigm; for Whites, a primary challenge, one that is often overlooked, is overcoming White racial bonding. They argue that Professor Calmore's methodology - clarifying the unspoken past, critiquing the paradigmatic present, and envisioning the uncreated future - can help us to figure out what must be done to achieve the kind of America that is consistent with its best aspirations, the kind of America that Professor Calmore has worked so hard to achieve.

Forceful Minimalism, Hein v. Freedom from Religion Foundation, Inc., and the Prudence of 'Not Doing'

Abstract: Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds in federal court. In Flast v. Cohen, the Court carved out a narrow exception for challenges to expenditures that allegedly violate the First Amendment's Establishment Clause. This exception requires a connection between the constitutional violation and Congress's use of its taxing and spending power. Hein involved a challenge to purely executive actions, and the Court faced the issue of whether to expand Flast to cover such actions. While some Justices called for completely overruling Flast in all situations and others called for expanding Flast to cover purely executive actions, the plurality took a narrower approach, denying standing without expanding or contracting the taxpayer standing doctrine. This Note builds on prior scholarship that advocates for judicial minimalism by arguing that Hein's plurality opinion demonstrates judicial minimalism succeeding in practice.