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Plurality opinion

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


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TL;DR: In the early days of the Supreme Court under the leadership of John Marshall, 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.
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. …

1 citations

Journal Article
TL;DR: Engle et al. as mentioned in this paper discuss the history of women's legal challenges to the United States Supreme Court, including Frontiero v. Richardson, United States v. Virginia, State v. Wanrow, Meritor Savings v. Vincent, and Oncale v. Sundowner Offshore Services.
Abstract: Karen Engle*:Good morning, and welcome to the first roundtable, which is in many ways a Rorschach test. In your packet, you have a handout that says Frontiero v. Richardson on the front. You might want to take it out and have it in front of you during the panel because we are going to focus on the cases included in the packet. We are delighted to have such a multidisciplinary audience here and hope the handout will assist those who might not be particularly familiar with the cases or who, in any event, could use a refresher.We have before us five eminent legal scholars. I will introduce them in the order they will be speaking this morning: Elizabeth Schneider, Vicki Schultz, Nathaniel Berman, Adrienne Davis, and Janet Halley. All of them have focused on or used theories about gender in their work, some to a greater extent than others, but all quite thoughtfully. We also have five famous legal cases. Most are cases that were brought by women's rights advocates in a deliberate attempt to move the law in a direction that would better attend to women's concerns. I have given you short excerpts from each of these cases in the handout, which are Frontiero v. Richardson,1 United States v. Virginia,2 State v. Wanrow,3 Meritor Savings v. Vincent,4 and Oncale v. Sundowner Offshore Services.5 At the time they were decided, each was considered a victory from the perspective of the women involved and from the advocacy organizations that either brought the cases on the women's behalf or supported them. As the panelists discuss these cases, they will offer five ideas about whether the strategies were subversive of the prevailing legal paradigms at the time and, regardless, whether the decisions have left us with a legacy of subversion either as method or as doctrine. We will also hear on the panel, I imagine, five ideas about the meaning of subversion and five ideas about whether subversion is good and, if so, whom it is good for. Finally, five ideas should emerge about the state of feminism today and its utility in what might be termed the post-feminist struggles of the twenty-first century.So here are the rules. I am going to give a brief summary of the cases so that the participants can refer to them without having to repeat the facts and basic rulings. Then each participant is going to have seven minutes to give her or his initial take on the cases. After those opening presentations, we will engage in a roundtable discussion.The five cases span from 1973 to 1998. The earliest of the cases, Frontiero v. Richardson, is the first case in which the United States Supreme Court ruled that classifications based on sex are entitled to heightened scrutiny. The case was brought by a servicewoman who wanted to get benefits for her husband, but was denied them because she was unable to demonstrate that he was her dependent. Servicemen were entitled to benefits for their spouses without making a similar showing because there was a presumption of dependency with regard to women. The plaintiff brought an equal protection claim and succeeded. In the plurality opinion, the Court recognized the long history of discrimination against women. Your handout includes a number of quotations in which the plurality opinion compared race discrimination to sex discrimination, stating that classifications based on sex should be subject to the same strict scrutiny as classifications based on race. Although the majority of the Court determined in a later case that classifications based on sex were subject to intermediate rather than strict scrutiny,6 Frontiero was nevertheless seen as a victory.Twenty-three years after Frontiero, Ruth Bader Ginsburg, who represented the plaintiff in Frontiero, authored the United States Supreme Court's majority opinion that struck down the Virginia Military Institute's exclusion of women as unconstitutional in United States v. Virginia ("VMI"). Originally, in response to a successful equal protection challenge, Virginia set up a separate, but clearly unequal, military school for women. …

1 citations

Posted Content
TL;DR: This paper analyzed the quantity and favorability of media coverage of the Supreme Court while treating the level of division among the justices as an independent variable and found that opinions with more dissents are covered more often, and those with fewer are more favorably.
Abstract: To what extent does the level of division among judges affect coverage of court decisions? Many legal minds, including members of the Supreme Court, have postulated that divisiveness within a court may undercut the legitimacy of its decisions. Additionally, research utilizing experimental public opinion surveys have established the plausibility of this claim (Zink, Spriggs, and Scott 2009). However, the Court’s ability to manipulate public opinion is contingent upon the news coverage of its activity. Peripheral findings by Ho and Quinn (2008) and Epstein and Segal (2000) suggest there is a media bias toward coverage of more divided decisions, though a thorough examination of news reporting of unanimity and dissent is absent from the literature. As such, I analyze the quantity and favorability of media coverage of the Court while treating the level of division among the justices as an independent variable. I find that, even when controlling for a variety of potentially confounding variables, including several indicators of case salience, Court characteristics, and policy areas, opinions with more dissents are covered more often, and those with fewer are covered more favorably.

1 citations

Posted Content
TL;DR: This Note argues the Casey Court failed to examine whether the "facts" about abortion had actually changed since Roe, warranting its reversal, and compares the Lochner-era cases to the abortion cases, claiming that they provide a model for overturning Roe.
Abstract: Long-standing constitutional precedents can be overturned when the original holdings have become "unworkable." This principle, first articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey and repeated by now-Chief Justice Roberts in his confirmation hearings, provides a creative means of overturning the most controversial precedent of all: Roe v. Wade. While it is unclear as to what constitutes an "unworkable" precedent, the plurality opinion in Casey gave some guidance, pointing specifically to Plessy v. Ferguson and Lochner v. New York. Both cases were overturned due to changed factual circumstances that had undermined the rationale of the original holding. Thus, the original holdings were "unworkable" because they thwarted basic values protected by the Constitution. However, the Casey plurality denied that Roe v. Wade was one of the instances where long-standing precedent merited reversal. The facts of abortion say otherwise. The abortion cases represent another context where changed circumstances undermine the rationale of the original holding. The Supreme Court's interest in providing doctors and patients the full range of treatment options in Roe v. Wade and Doe v. Bolton has ballooned into an industry in which most abortions are unrelated to actual health concerns. This is particularly worrisome in light of burgeoning evidence that demonstrates that abortion has a number of negative health and psychological consequences for women. Like the purported failure of laissez-faire economics to provide for basic human welfare, abortion has not been a boon to women's health, but rather a growing public health concern with hidden long-term effects. Roe is an unworkable precedent, meriting reversal. This Note argues the Casey Court failed to examine whether the "facts" about abortion had actually changed since Roe, warranting its reversal. The Note compares the Lochner-era cases to the abortion cases and claims that they provide a model for overturning Roe, considered in light of the newest information about the effects of abortion on women's health and well-being.

1 citations

Posted Content
TL;DR: In this article, the authors highlight the error in the majority opinion in Baze v. Rees and describe the potential consequences of applying this reasoning to other areas of constitutional law, such as criminal justice.
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]

1 citations

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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
20171
201611
20157
20148
201310
201210