Plurality opinion

About: Plurality opinion is a research topic. Over the lifetime, 163 publications have been published within this topic receiving 5206 citations.

Are Elected Judges More In Tune With Public Opinion? A Look at Sentences for Rape

Abstract: The authors examine an important question in judicial selection: Do elected judges conform more to public preferences than appointed ones? Using data from 29 states, concerning sentences in rape cases, a link is discovered with public opinion. However, elected judges are found to be no more responsive to public opinion than non-elected judges. It appears likely that even appointed judges have adopted the preferences of the public in their state.

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

Explaining Plurality Decisions

Abstract: Many of the Supreme Court’s most important decisions, such as those involving executive power and the constitutionality of abortion regulations, are decided by plurality decision. Plurality opinions result when five or more Justices agree on the result in a particular case but no single rationale or opinion garners five votes. Many Justices, including William Rehnquist and Ruth Bader Ginsburg, have addressed the problems created by plurality opinions, such as interpretive difficulties in determining the Court’s holding, but few scholars have addressed plurality decisions other than in passing.In the first empirical analysis examining the occurrence of plurality decisions, the authors examine a variety of ideological, collegial, contextual, and legal factors to determine which factors are most likely to lead to plurality decisions. Drawing on data for every Supreme Court case decided between the 1953 and 2006 Terms of the Supreme Court, the results of the study are illuminating. For example, a case is more likely to result in a plurality decision if it involves an issue of constitutional interpretation with respect to a civil liberties issue and lower court conflict did not influence the decision to grant certiorari.In addition, the authors estimate an individual Justice model that measures which factors are most likely to lead to votes by Justices to concur in the judgment, which is the key ingredient for a plurality opinion. A Justice’s distance from the majority (or plurality) opinion author and prior lack of cooperation with the opinion author, both play a large role in whether a Justice joins the majority and separately concurs or votes to concur in the judgment. Many of the same factors found influential in the case level model are also found to influence Justices’ decisions to concur in the judgment. Given the importance of plurality decisions to understanding the Supreme Court, this Article provides the basis for further normative evaluations of whether plurality decisions harm the development of the law and how such decisions should be interpreted by lower courts.

Authorizations for the Use of Force, International Law, and the Charming Betsy Canon

Abstract: Although international . law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This Article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the Charming Betsy canon, maximizes the presumed preferences of Congress, advances separation of powers values, and promotes normative values that favor the use of international law as an interpretive tool.