Showing papers on "Plurality opinion published in 2009"

Uncertain Precedent Circuit Court Responses to Supreme Court Plurality Opinions

Abstract: To what extent do lower court judges follow Supreme Court plurality opinions? By examining treatments of Supreme Court cases from the 1976-1986 terms by the Circuit Courts of Appeals from 1976 to 2...

Modeling Collegial Courts (3): Adjudication Equilibria

Abstract: We present a formal game theoretic model of adjudication by a collegial court. 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, join, and concurrence - coalitions. 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. This paper substantially revises a prior post 'Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting and Adjudication Equilibria.' The current version presents the model more clearly but it lacks a number of illustrative examples and figures that appear in the prior version.

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.

The Tri-Chemical Cocktail: Serene Brutality

Abstract: INTRODUCTION "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." (1) On September 25, 2007, the United States Supreme Court granted certiorari in the case of Baze v. Rees to determine whether the chemicals and procedures currently used to implement lethal injection in Kentucky amount to "cruel and unusual punishment." (2) The death-row-inmate petitioners alleged that Kentucky's lethal injection protocol, which is nearly identical to all current lethal injection protocols in the United States, violates the Eighth Amendment because it risks subjecting the condemned to an excruciatingly painful death. (3) The Court rejected this claim, explaining that petitioners' evidence failed to demonstrate that Kentucky's protocol presented a constitutional violation. (4) Prior to this decision, the Court had not directly addressed the constitutionality of a method of execution since 1878 in the case of Wilkerson v. Utah. (5) In that case, the Court upheld the constitutionality of the firing squad, noting that the Eighth Amendment prohibits "punishments of torture." (6) Since Wilkerson, while not directly addressing the appropriate legal standard for determining whether a method of execution is unconstitutional, the Court, mostly in dicta, has made reference to varying standards ranging in terms of the amount and risk of pain permitted. (7) This left lower courts with little guidance as to which standard should be applied to the many lethal injection challenges filed since the Court's rulings in Nelson v. Campbell (8) and Hill v. McDonough, (9) which "cleared the path for legal challenges to the chemicals and procedures used in lethal injections." (10) As a result, the standards adopted by these lower courts often varied significantly from one another, making the ultimate determination of "cruel and unusual" one largely dependant on jurisdiction. As would be expected, this situation created growing uncertainty as to what the controlling law actually was. The decision in Baze was expected to quell this confusion with a singular legal standard. But although the Baze Court was forced to finally articulate such a standard, the standard that it did articulate in its sharply fractionated plurality opinion will likely do little to end the debate and cure the uncertainty surrounding modern, three-drug lethal injection. This Comment will argue that although lethal injection in the abstract may have the potential to be the most humane method of execution, the specific chemicals and procedures currently used in its implementation are inconsistent with the foundational principles underlying the Eighth Amendment's proscription of "cruel and unusual" punishment. Part I will briefly describe the origins of capital punishment, generally and in the United States, and explain how the passage of the Eighth Amendment marked the first official step in the nation's history away from the brutal and toward the humane. Part II will then demonstrate that this movement away from the barbaric has continued. It will trace the history of the major methods of execution used in the United States, showing that, historically, the nation's decisions to adopt certain methods while abandoning others were, and continue to be, rooted in the search for the most humane method available. Ultimately, it will show that although the Supreme Court has yet to hold any of these methods unconstitutional, the effective abandonment of the more brutal methods evinces the nation's growing intolerance of needless pain and suffering. Part III will briefly describe the basic lethal injection procedure, explain the chemical combination currently used by the majority of death penalty states, and address the main risk associated with the tri-chemical combination. Part IV will then examine certain aspects inherent in the current implementation of three-drug lethal injection that greatly enhance this risk. …

On Account of Race or Color: Race as Corporation and the Original Understanding of Race

Abstract: This Essay is a critique of constitutional and political discourse on "race." I argue that current equal protection doctrine operates under a conception of race that undermines rather than moves forward the goal of achieving racial equality. That understanding defines race solely or primarily as a physical trait or characteristic, and unjustifiably rejects other, more robust notions of race. I argue the notion of race as physical trait is inconsistent with the historical understanding of race that served as the basis for the Reconstruction Amendments. A careful examination of nineteenth and early twentieth century court decisions, decisions which include Plessy v. Ferguson (1) and Strauder v. West Virginia, (2) suggests that the framers of the Reconstruction Amendments and the Supreme Court Justices of that era thought of race, not as a physical trait, but as an entity with a corporate existence. In other words, they thought of race as corporation. Part I will critique current equal protection doctrine and argue that it has adopted a narrow and constitutionally problematic definition of race as physical trait. Part II will then examine the original understanding of race and discuss the concept of race as corporation. Part III will then examine the implications of the race as corporation concept for rethinking current equal protection doctrine. I Political and legal discourse about race is often confusing and bewildering because we often fail to fully understand that, as an "essentially contested concept[]," (3) "race" has no fixed, essential meaning and is thus subject to multiple definitions. (4) In the post-Brown, (5) late twentieth and early twenty-first century era, the unstated, default assumption in legal discourse was that race refers to a physical trait such as skin color, or an identity based on skin color. (6) But of course, race as skin color or as racial identity is not the only way to think about and conceive of race. Consequently, when we engage in racial discourse, confusion and misunderstanding are inevitable if we forget about the multidimensional nature of the concept of race. Too often, discursive actors assume that they hold the same assumptions about the meaning of race when in actuality, they hold related but different understandings. What's more, an actor will often use multiple definitions of race without being consciously aware that he or she is doing so. Current equal protection doctrine on race is conceptually and practically incoherent, in large part because there is an illusory consensus regarding the constitutional meaning of race. Thus, in Richmond v. Croson, Justices Sandra Day O'Connor and Thurgood Marshall seemed to agree that the Fourteenth Amendment was centrally concerned with the problem of race. (7) In her plurality opinion, O'Connor asserted that, "[t]he Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race." (8) While dissenting from O'Connor's opinion, Marshall nevertheless expressed his agreement with O'Connor's understanding of the Fourteenth Amendment, stating, "[t]he three Reconstruction Amendments undeniably 'worked a dramatic change in the balance between congressional and state power.'" (9) Yet, despite their agreement regarding the fundamental relationship between the Fourteenth Amendment and "race," Justice O'Connor voted to strike down a local government race-conscious affirmative action program as a form of invidious racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, (10) while Justice Marshall voted to uphold the race-conscious set-aside as entirely consistent with the Fourteenth Amendment Equal Protection Clause. (11) O'Connor and Marshall's disagreeable agreement over the relationship between "race" and the Fourteenth Amendment beautifully captures the essentially confused state of current equal protection doctrine on race. …

Accepting Justice Kennedy's Challenge: Reviving Race-Conscious School Assignments in the Wake of Parents Involved

Abstract: More than half a century after Brown v. Board of Education mandated an end to racial segregation in American schools, districts nationwide remain crippled by racially homogenous classrooms and a widening achievement gap between white and minority students. Racial segregation is rising, minority student achievement is falling, and race-neutral solutions alone consistently fail to stem the tide. Against this backdrop, the Supreme Court overturned race-conscious school assignment programs that aimed to integrate the Seattle and Louisville school systems. The plurality opinion in Parents Involved in Community Schools v. Seattle Public School District No. 1 commanded districts to stop classifying students based on race. Providing the crucial fifth vote, however, Justice Kennedy limited the Court’s holding by finding a compelling educational interest in racial diversity. Parents Involved altered the path to Brown’s promise of desegregation, but Justice Kennedy’s opinion ensured that we are not at a dead end. Taking account of Justice Kennedy’s well-defined concerns, this Note urges school districts to adopt assignment policies that broaden the concept of diversity, avoid racial quotas, and mandate informed reviews of the progress towards educational equity. In addition, in an effort to create a comprehensive plan that has the greatest likelihood of lasting integration, this Note suggests that school districts should include race-neutral alternatives that improve diversity.

Why Third-Party Standing in Abortion Suits Deserves a Closer Look

Abstract: Third-party standing, the out of the ordinary ability for a litigant to bring not only his own claims to court but those of an absent party as well, is a powerful legal device that demands close attention by judges applying difficult, fact-based tests. Too often since the split decision in Singleton v. Wulff (1976), federal courts have not engaged in a thorough analysis when abortion providers have sought third-party status to present the interests of current or prospective clients. In those cases, the third-party claims were often decisive to the final outcome, making the initial third-party standing determination one of great importance. This Note argues that the United States Supreme Court decision in Kowalski v. Tesmer in 2004 is not only the new governing law on this question, but is also better in tune with the purposes of standing law than the Singleton plurality opinion. It further argues that most abortion providers’ third-party standing claims will not pass the much more rigorous Kowalski test, and includes some practical suggestions for litigants on using the new standard.

There Must Be a Means: The Backward Jurisprudence of Baze v. Rees

Abstract: The Supreme Court’s plurality opinion in Baze v. Rees begins with a seemingly simple assertion of constitutional law. “We begin with the principle, settled by Gregg, that capital punishment is constitutional.” It continues, “It necessarily follows that there must be a means of carrying it out.” This second pronouncement provides the foundation for the Supreme Court’s holding in Baze that Kentucky’s refusal to modify its lethal injection procedure does not violate the Eighth Amendment. However, in taking the position that the constitutionality of an existing method of capital punishment is dependent on the availability of alternative execution procedures, the Supreme Court has turned Eighth Amendment jurisprudence on its head, establishing a dangerous loophole that could imperil our most important constitutional protections. This essay highlights the error in the Court’s reasoning in Baze, and describes the potential consequences of applying this reasoning to other areas of constitutional law. [SSRN posted version is a pre-publication draft]

Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised in Legal Thought

Abstract: Semiotic analyses are applied to a question of family law. By examining the language used by the Supreme Court in the title case, Michael H. v. Gerald D., along with the case briefs, lower court opinions, other Supreme Court cases and prior legal scholarship, one determines the requisite relationships between father and child and father and mother in order for a legal tie to exist between a father and his biological child. The chapter focuses on the necessary circumstances and also the political ideology that distinguishes these familial ties. Legal semiotics delivers the tools to analyze the goals of such underlying political ideologies.

The Costs of 'Discernible and Manageable Standards' in Vieth and Beyond

Abstract: This Note argues against the use of the prudential political question doctrine (PPQD), as exemplified by the Vieth v. Jubelirer plurality opinion. In Vieth, the Supreme Court avoided formulating a standard for adjudicating the constitutionality of partisan gerrymandering due to a claimed lack of a “discernible and manageable standard.” This meant, according to the plurality, that no proposed doctrinal test was both concrete enough to be workably deployed by lower courts and discernible enough in the constitutional text, history, and structure, inter alia. Although the Vieth plurality opinion presents itself as based on universally applicable metadoctrine determining what is and is not a discernible and manageable doctrinal test, this Note argues the Court’s use of the PPQD is ultimately based on a gestalt prudential judgment about the wisdom of intervention in the particular area of partisan gerrymandering. This Note then argues that the PPQD leads to negative consequences for future litigants and judicial legitimacy. The PPQD sends litigants on a wild goose chase for a perfect doctrinal standard, when it seems clear that no standard will satisfy the Vieth plurality. It also invites litigants to argue about what a discernible and manageable doctrinal test is in the abstract, rather than to address the particular legal issue at hand. These diversions insulate the judiciary from legitimate criticism of the grounds of its decisions. This Note then compares the PPQD to another option for judicial avoidance: a merits standard that is almost impossible for plaintiffs to meet in practice, such as rational basis review. This Note concludes that a stringent merits standard is a superior mechanism for judicial avoidance because it does not carry the same high costs for litigants and judicial legitimacy as the PPQD. Additionally, it allows the Court to exit from active adjudication of an issue while still preserving its ability to intervene in egregious cases.