Plurality opinion

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

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.

Issue Divisions and US Supreme Court Decision Making

Abstract: Majority opinions are the most important output of the US Supreme Court, not only disposing the instant case but also providing guidance for other institutions, lower courts, and litigants as to the state of the law. The authoring of dissenting opinions, though, is frequently regarded as deleterious to the Court’s institutional legitimacy and the efficacy of the majority opinion. Leveraging the content of all Court opinions between 1979 and 2009, I argue dissenting justices use dissenting opinions to strategically alter the issue dimensions addressed in the majority opinion. An examination of the effect of separate opinion content on majority opinions indicates dissenting opinions yield majority opinions addressing a greater number of topics, and I provide evidence that the dynamic is driven by the strategic behavior of dissenting justices seeking to realign the Court.

Socioscientific evidence and supreme court numerology: When justices attempt social science

Abstract: In Stanford v. Kentucky, in which two juveniles sentenced to death raised an Eighth Amendment challenge, Justice Scalia's plurality opinion set the ground rules for deciding juvenile death penalty cases. He ruled "socioscientific" evidence and philosopher-king decisions out of bounds. Scalia argued that the Court must do its own social science analysis of the objective indicia to gauge whether community sentiment finds such a punishment cruel and unusual. In determining whether a "national consensus" exists, Justice Scalia transformed the empirical question into an impossible question, requiring that a categorical aversion must be shown. Petitioners lost, but so too did social science jurisprudence, as "statistical magic" and "numerology" reigned supreme. Language: en

Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court

Abstract: Plurality decisions on the Supreme Court represent extreme dissensus. In those cases, no clear majority is formed for any one controlling rationale for the final disposition. Such decisions are important to understand both because they result in the erosion of the Court’s credibility and authority as a source of legal leadership, and because they teach us broader lessons about judicial decision making. In this paper we ask: what causes the Court to issue an opinion which lacks precedential value? We propose and test three theories to explain plurality decisions - a social consensus account, a “hard” case theory, and an explanation based on the “collegial game.” Hypotheses are tested based on all orally argued cases during the 1953-2006 terms. We find that splintering is more likely when the Court reviews contentious or politically salient questions, in constitutional cases, and when the median justice writes the opinion. When the Chief Justice assigns the opinion, plurality decisions are less likely. We discuss our findings in light of existing theories of judicial decision making and examine how our new understanding of plurality opinions sheds light on decision making on the Court more generally.

Understanding the Length of State Supreme Court Opinions

Abstract: The writing of a majority opinion is the most important task for judges and justices on collegial courts because they must be able to explain and justify the court’s decision in a way that will be understood by other legal and political actors. For state supreme court justices, we argue that the opinion-writing process is driven by the information the opinion author has as well as internal institutional constraints. In this article, we examine the length of opinions produced by state supreme courts to determine whether there are differences in the opinion-writing process between elected and appointed courts. Using an original dataset comprising all education cases decided by state supreme courts from 1995 to 2005, we find, consistent with our expectations, that elected justices appear to be more concerned with audiences external to the court in writing opinions, whereas appointed justices are more likely to respond to internal constraints and conditions.