Plurality opinion

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

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Abstract: Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision-making during the Burger Court (1969-1986). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo.

Divisions of Opinion Among Justices of the U. S. Supreme Court, 1939–1941.

Abstract: “We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.

Justices and Legal Clarity: Analyzing the Complexity of Supreme Court Opinions

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

Retesting Segal and Spaeth's Stare Decisis Model

Abstract: Segal and Spaeth's (1996) innovative article constitutes the most ambitious attempt to date to empirically test whether stare decisis influences the votes of the justices on the United States Supreme Court. These two scholars inspect a 40% random sample of major, nonunanimous decisions of the Court in the 1953 through 1995 era as well as the progeny of these cases, i.e., orally argued, full opinion cases that applied "the holding of the majority or plurality opinion" of the major case. They test whether the dissenting justices in Case 1 (the major case) support the precedent of Case 1 in Case 2 (the progeny case) or vote the same way as they did in Case 1, i.e., vote their "preferences." Note two characteristics of their clever research design. First, they treat situations in which the justices' preferences (based on their vote in Case 1) indicates that they will vote one way and conformity to precedent indicates that they vote the other way. This is a productive way to proceed. For the best way of showing that a precedent is influential is to focus on the situation when conformity to precedent is in conflict with the justices' preferences. Second, Segal and Spaeth focus on major cases. They state that they chose these cases "because they are more likely to establish precedential guidelines for future cases and because they are more likely to actually generate progeny that we can analyze," (1996, 976). In addition, the rule of the law set forth in the major cases is likely to be sufficiently unambiguous and sufficiently dramatic that the justices in Case 2 will be forced to either uphold the precedent or refuse to do so. The justices cannot simply ignore the precedent.' Segal and Spaeth discover that justices vote their preferences 90.8%

Bargaining on the U.S. Supreme Court: Justices' Responses to Majority Opinion Drafts

Abstract: Supreme Court opinions contain legal rules with broad policy ramifications, and justices try to shape the substance of the Court's opinions. Despite this expectation, scholars have neither systematically measured nor explained the extent to which justices attempt to affect majority opinions. We articulate and test a model that explains how justices respond to majority opinion drafts. Our argument is that justices decide how to respond based on the effect a choice will have on securing their policy goals. The costs or benefits of a choice, moreover, are a function of strategic and contextual factors, including a justice's agreement with an opinion, the collaborative decision-making setting on the Court, case characteristics, and attributes of the justices. Our data analysis strongly supports our argument showing that, among other considerations, justices' responses result from their disagreement with an opinion, the author's prior level of cooperation with them, and the salience of a case.