Showing papers on "Supreme court published in 1968"

Public Opinion and the United States Supreme Court: Mapping of Some Prerequisites for Court Legitimation of Regime Changes

Abstract: ANY RELATIVELY STABLE POLITY must possess means for converting many, if not most, demands made on political authorities into satisfying outputs, whether material or symbolic. Failure to cope with pressing demands might lead to a severely dysfunctional loss of public support for particular officials as well as for the regime itself. On the other hand, efforts to meet demands through blatant violations of accepted rules can also cause great loss in public support.'

On the Fluidity of Judicial Choice

Abstract: Within the past decade, a significant change has occurred in political science literature about the judiciary. The central questions have shifted from public law concerns—what is the law and its value?—to a primary focus on decision-making and process—how and why courts decide what they do, and with what political effects? The Supreme Court still dominates professional attention, but a host of new research techniques (jurimetrics and socialization studies, content and capability analysis, small group theory, etc.) vie for the allegiance of researchers.1 The variety of methods in vogue is formidable, and a testament to the borrowing power of the profession. So has been the sound and fury accompanying the change. The new approaches are perhaps too young to attempt a synthesis with traditional methods of analysis or even among themselves. Yet it is never too early to locate unities of inquiry, including common problems. The object of this essay is to air one difficulty facing virtually every student of the judicial process—the fluidity of judicial choice—and to examine some of its implications for research in and normative evaluation of judicial behavior. The general argument should be stated at the outset. My purpose is to present empirical findings as a basis to critique some current research techniques in hopes of contributing to the analytical synthesis which must come if the discipline is to make a concerted advance in understanding judicial behavior. From a research standpoint, an unfortunate by-product of the debate between the “quantifiers” and the “qualifiers,” as Joseph Tanenhaus has distinguished them, is that extremes of advocacy have obscured the much more important things that students of the judiciary share in common than the methodological differences which agitate them.

The political party basis of attitudes toward the supreme court

Abstract: What are the main determinants of public attitudes toward the Supreme Court? Do they stem from the fact that one's political party controls the White House? The authors find the answers from Gallup surveys, from questions asked by the Michigan and Berkeley Survey Research Centers, and from a comprehensive study by the Wisconsin Survey Research Laboratory in 1966. Kenneth M. Dolbeare is an Assistant Professor of Political Science and Phillip E. Hammond is an Associate Professor of Sociology at the University of Wisconsin.

The Repeal of Fair Housing in California: An Analysis of Referendum Voting*

Abstract: In the summer of 1963 the California legislature passed the Rumford Act, prohibiting racial discrimination by realtors and the owners of apartment houses and homes built with public assistance. California real estate and property management interests, which had fought the Act's passage, then placed on the November 1964 ballot an initiative provision (Proposition 14) that would amend the state constitution to repeal the Rumford Act and prevent the state or any locality within it from adopting any fair housing legislation. During most of 1964 intense and lavishly financed campaigns were fought by supporters and opponents of Proposition 14. Almost 96 per cent of the people who turned out on election day voted on the measure, which passed by a ratio of two to one. In one sense the campaign and balloting were an exercise in futility, for in May of 1967 the United States Supreme Court declared Proposition 14 unconstitutional. Some short-term consequences of its passage were apparent, however. For several years there was a severe weakening of legal sanctions against racial discrimination in housing, resulting in abandonment of many cases that were underway before the 1964 election. For eighteen months the federal government froze $120 million in funds for California urban renewal projects. Less tangibly, it is claimed that the proposition's overwhelming popularity contributed to the Watts riots and other racial violence in California.

The Supreme Court and Authority Acceptance

Abstract: HE AMERICAN governmental experience federalism, separation of pow~ ers, majority rule has always been interested in, and concerned about, authority. This concern has been evident since the beginning of the Republic, by the national Constitution’s assumption that ultimate authority is vested in the people, that authority for day-to-day decision-making is distributed among representatives at the national and state levels, and that through such a system the people acknowledge actions of their representatives at the national and state levels as being authorized. The American political process thus has come to include the phenomenon of legitimacy acceptance of governmental authority by the people. Easton has noted that most political systems-particularly in Western-oriented societies have found it helpful, if not vital, to create and maintain a sense of legitimacy as a means of preserving political stability and setting down rules for the exercise of authority.’ Charles L. Black has successfully applied the concept of legitimacy to the American political process, describing the United States Supreme Court as a &dquo;legitimator,&dquo; an organ for settling conflicts arising over the authority of a particular branch or level of government as opposed to another, or to the

The Perils of Pluralism: The Background of the Pierce Case

Abstract: THE King Kleagle, Pacific Domain, of the Knights of the Ku Klux Klan warmed to his theme. We are facing now, he said in I922, "the ultimate perpetuation or destruction of free institutions, based upon the perpetuation or destruction of the public schools." To defend the common school "is the settled policy of the Ku Klux Klan and with its white-robed sentinels keeping eternal watch, it shall for all time, with its blazing torches a signal fires, stand guard on the outer walls of the Temple of Liberty, cry out the warning when danger appears and take its place in the front rank of defenders of the public schools."' The Kleagle and his hooded colleagues had just helped persuade the citizens of Oregon to pass an initiative requiring all children between eight and sixteen to attend public schools and essentially outlawing private elementary schools. Now they were awaiting a court test of the law by their opponents. Their short-lived triumph and the monumental decision of the United States Supreme Court in I925 (Sisters v. Pierce) ruling the law unconstitutional together form an illuminating case study of the purposes and limits of compulsory public education. Grotesque though it may be to see the KKK as defenders of the common school, the Oregon adventure in education merely exaggerated certain patterns prevalent in our social and educational history of the last century. Nativism, ioo per cent Americanism, anti-Catholicism, distrust of the rich and well-born, political and moral fundamentalism-these were hardly new. But in the 1920'S, fundamentalists of all stripes felt a peculiar sense of urgency, of anxiety, of displacement. (The names of the days in the Ku Klux Kalendar suggest the mood: "Desperate, Dreadful, Desolate, Doleful, Dismal, Deadly, Dark."2)

Operation Baxstrom after one year.

Abstract: A decision of the U. S. Supreme Court resulted in the movement of 969 "insane criminals" and "criminally insane" persons from, the hospitals of the New York State Department of Correction to the civil state hospitals of the Department of Mental Hygiene during the period March to August 1966. After one year there have been no significant problems with the patients. All have been absorbed into the general patient population, many reside on open wards, over 200 have been released, and only seven have been certified as too dangerous for a civil hospital. The experience has stimulated a variety of administrative and legislative moves toward liberalizing and improving the state's programs for the mentally ill and for offenders. The clinical experience raises questions concerning the need and the wisdom of placing the mentally ill in special security facilities solely because of their legal status. Legal circles are questioning the constitutionality of confining any mentally ill person in a prison-type facility ...

Role Theory and the Supreme Court

Abstract: A MAJOR PROBLEM FACING those who analyze the Supreme Court I involves the question of whether the decision processes are those of the Court as an institution or of individuals on it. How far does the Court form the Justice's conception of his role, and how far is that conception formed by his previous experience and opinions? To what degree are his opinions the product of the institutional setting and to what degree are they the product of prior interests? In attempting to answer, analysis of the Supreme Court has passed through three phases: traditionalism, realism, and behavioralism. Each has had its pitfalls as well as merits. Their differences might be summarized through an analogy to the tale of the Emperor's new clothes. The traditionalist firmly maintains that the Emperor is majestically apparelled. The realist indignantly asserts that he is stark naked, and hints at infantile dependence problems for those who require him clothed. The behavioralist wishes to ascertain why he is not clothed, and construct indices by which one may determine on any given occasion, the degree of his exposure. (Little of the inquiry is ever appreciated by the Emperor.) Despite an increasing degree of sophistication, the analytical techniques and conceptual tools applied to date leave unanswered questions concerning -the ways in which personal attitudes influence legal interpretation and action, and what conditions their effect. Specifically, they do not provide an adequate way of describing and identifying institutional factors in judicial attitudes. Obviously a tool of analysis is needed which will set the balance between structural and behavioral factors in a manner which makes more clear how and under what conditions personal attitudes may influence judicial decisions.

The Warren court; constitutional decision as an instrument of reform

Abstract: The appointment of Earl Warren as Chief Justice of the United States in 1953 marked the opening of a new era in the nation's constitutional development. As Mr. Cox points out in his Preface, during the next fifteen years the Supreme Court rewrote, with profound social consequences, major constitutional doctrines governing race relations, the administration of criminal justice, and the operation of the political process. The extent and the rapidity of these changes raise grave questions concerning the nature and function of constitutional adjudication and the proper role of the Supreme Court in the national life. In these lectures, originally given in somewhat shorter form in Honolulu in the summer of 1967 under the joint auspices of Harvard Law School and the University of Hawaii, Mr. Cox describes the main lines of constitutional development under the Warren Court. He analyzes the underlying pressures involved and the long-range institutional consequences in terms of the distribution of governmental power. The central theme of Mr. Cox's book is embodied in his examination of the American paradox that invests the judicial branch with the responsibility of deciding "according to law" our most pressing and divisive social, economic, and political questions. Although not uncritical of the grounds on which several of the court's crucial decisions have been reached, Mr. Cox comes to the conclusion that the trend of the rulings has been "in keeping with the mainstream of American history--a bit progressive but also moderate, a bit humane but not sentimental, a bit idealistic but seldom doctrinaire, and in the long run essentially pragmatic--in short, in keeping with the truegenius of our institutions."

Why a Class can't Change its Members

Abstract: There is a category of things which seem pluralistic in some way. Examples are the U.S. Supreme Court, the genus Homo, the Red Army, etc. Sometimes it is suggested that such an entity be identified with a class-most naturally, with the class of those things which make it up. So, for example, the U.S. Supreme Court would be identified with the class of men who belong to it. I am concerned with this sort of identification only indirectly here. My main concern is with a response which arises as an objection to it. The response runs as follows: the Supreme Court changes in membership; no class changes in membership; therefore, the Supreme Court is not identical to any class. This argument is formally valid. However, I believe that we can reasonably question whether it establishes its conclusion. For one might wonder why the second premise is supposed to be truewhy do classes never change in membership? There is, one supposes, such a thing as the Supreme Court, an entity which persists through time, having as members at a given time just those men who are Supreme Court Justices at that time. Why could there not be a class just like this, having as members at a given time just those men who are Supreme Court Justices at that time? Is there some special principle about classes which entails that classes cannot change their members, but which would not apply to entities like the Supreme Court to entail that they cannot change their members?

Schizophrenia and the poor

Abstract: publication of the lectures in 1955. The reader is brought up to that moment by a discussion of the by now well-known Durham case (United States Court of Appeals for the District of Colum¬ bia, 1954, with Judge Bazelon presiding). There then follows a chapter of illustra¬ tive cases showing the wide gap between law and psychiatry. A bibliography and ample notes are available in this as in the original volume. While this slim volume may be of interest as an historical overview from a great height (where important details are missing and therefore mar its meticulousness), it ob¬ viously cannot help but suffer from the im¬ mediacy of the past 12 years, during which the dialogue between psychiatry and law has taken some important strides forward. As an example one may cite a recent deci¬ sion by Justice Arthur Whittenmore of the Massachusetts Supreme Court, who ruled that the American Law Institute's model penal code should be substituted for the M'Naghten rule. The model penal code states that a person who can tell right from wrong is not neces¬ sarily sane if "he lacks substantial capacity either to appreciate the criminality and wrongfulness of his conduct or to conform his conduct to the requirements of the law." JACK WEINBERG, MD

Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science

Abstract: The work of Professor Martin Shapiro is distinguished by lucidity, an analytical turn of mind, formidable sophistication, and a thoroughly readable style. A political scientist by training, Shapiro is very much at home with the tools and techniques of the lawyer. His flair for case analysis is much in evidence in Law and Politics in the Supreme Court In the chapters on tax and labor policy, for example, his view of the Court as a political agency furthering its interests through interaction with other agencies such as the Internal Revenue Service and the National Labor Relations Board is developed through close readings of decisions2 and comparisons among groups of cases.' Indeed, Shapiro's analysis of the reapportionment controversy demonstrates a regard for lawyers' sensibilities seemingly above and beyond the call of duty-considerably more than half the chapter is devoted to a closely reasoned parsing of the \"political question\" cases.\" Shapiro's regard for \"lawyer's law,\" however, is only apparently excessive. His focus on the interaction among governmental agencies inevitably involves consideration of cases in which the Court paces the boundaries of its own jurisdiction. And as Professor Bickel's work in The Least Dangerous Branch' testifies, this judicial mapping of spheres of competence is preeminently \"lawyer's law,\" with compass directions provided in the arcane terminology of \"case and controversy,\" \"standing,\" and \"ripeness.\" Yet it is precisely here that Shapiro breaks decisively with conventional legal approaches. Shapiro denominates his view \"political jurisprudence.\"' Postulating 0 A.B. 1955, LL.B. 1962, Ph.D. 2962, Yale University. Associate Professor of Law, Yale University. Anything of value in this Article owes much to three men associated with the Stanford Law School: Jared G. Carter, formerly assistant professor of law, who first suggested many of these ideas to me; Professor William F. Baxter, who helped me to refine them in the course of long and, at least on his side, gracious conversations; and Dean Bayless A. Manning, who first afforded me the opportunity of offering the seminar in which they were developed. I. M. SHAPmo, LAw AND PoLiTics IN Tim SuPR.asa CouRT: NEw APPROACHES To POLITICAL JURISPRtDENCE (1964). 2. See, e.g., id. at o7-o9. 3. See, e.g., id. at 113-24. 4. Id. at 175-216. 5. A. BICKEL, ThE LEAsT DANoastous BRANCH: THE Su xMEm COURT AT Tit BAR oF POLITICS (2962). 6. M. SuAs'mo, supra note I, at 15;.

Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior

Abstract: IT IS IMPOSSIBLE to understand fully the work of the Supreme Court and similar appellate bodies without focusing on the crucial role of the individual justice. Supreme Court decisions are the products of the constant and forceful interaction of judicial minds and personalities, of precedents and traditions of the past and perceptions of the future, and of the conflicts and reinforcements which develop in its relationship to other political institutions. Justices are products of their environment, past and present, and it is a large part of their task to apply the values derived from these experiences to resolving cases before them. Contemporary students of the Court have articulated a number of techniques for studying the decision-making process. All are based on the assumption that the values and attitudes of individual justices are crucial determinants of decisional behavior, but each differs in its particular emphasis on the precise role which attitudes, values, or the backgrounds of the justices play in arriving at both individual and collegial determinations." In fact, the major disagreements among contemporary scholars seem to be over the relative importance of one or another component, rather than on the existence-or lackof these components.2

Isaac Backus and the Separation of Church and State in America

Abstract: THE role of Isaac Backus (I724-I806) and the Separate Baptists in the development of the American tradition of separation of church and state has not yet been given its due. Yet any careful evaluation of this tradition must acknowledge that neither the position of Roger Williams nor that of Thomas Jefferson and James Madison adequately defines it. The basic premises of Williams' position were far too Puritan in theology and too anti-institutional in polity to be typical, while the basic premises of Jefferson's and Madison's position were far too rationalistic and anticlerical. Or, to put it another way, Williams was too great a perfectionist about religious purity while Jefferson and Madison were too indifferent, if not hostile, toward revealed religion to be entirely representative of the American approach to church-state relationships.' In the secular mood of the twentieth century the United States Supreme Court has drawn heavily upon Jefferson and Madison in its increasingly rigid interpretation of the "no establishment" clause of the First Amendment, but throughout the nineteenth century most Americans firmly believed that the United States was a Protestant nation and that as such its laws and customs should conform to the will of the evangelical majority.2

Role of the Supreme Court in a Democratic Society -Judicial Activism or Restraint

Abstract: or sometimes dimly foreseen problems, Coturts are concerned with the flesh and blood of an actual case. This tends to modify, perhaps to lengthen, everyone's view. It also provides an extremely salutary proving ground for all abstradtions; it is conducive, in a phrase of Holmes, to thinking things, not words, and thus to the evolution of principle by a process that tests as it creates.48 "Their insulation and the marvelous mystery of time give courts the capacity to appeal to men's better natures, to call forth their aspirations, which may have been forgotten in the moment's hue and cry?'49 This is what Justice Stone called the opportunity for "the sober second thought."0 Charles Black put it more concisely when he termed judicial review "the people's institutionalized means of self-control."1 This conception of judicial review, casting the Court as the guardian of enduring principle and as a check on overzealous legislatures, depicts the Court as an essentially conservative rather than creative force in our society-hardly the "revolutionary committee" Professor Berle has called the Warren Court. 2 The political and social realities of the twentieth century, however, have required government to essay an affirmative role in its service to its citizens. The Court, as part of government, must participate in that affirma-Vive role. This, of course, does not minimize the importance of protecting fundamental individual rights from governmental invasion. The original Bill of Rights was essentially negative, putting beyond the reach of government the world of the spirit and raising procedural barriers to governmental intrusion. The definition of these barriers in opinions such as Brandeis's dissent in Olmstead&3 or his concurrence in Whitney,5 4 which have since carried the day, has been crucially important in charting the direction in which our society has moved. But today, as Archibald Cox put it: [T]he political theory whith acknowledges the duty of government to provide jobs, social security, medical care, and housing extends to the field of human rights and imposes an obligation to promote liberty, equality, and dignity. For a decade and a half recognition of this duty [of the Court] has been the most creative force in constitutional law.55

A Comparative Analysis of State and Federal Judicial Behavior: The Reapportionment Cases

Abstract: The literature discussing the responses of lower court judges to decisions of the United States Supreme Court is limited, and the few comparative analyses of state and federal judicial behavior have tended to be speculative rather than empirical. It has been suggested that a controversial Supreme Court decision is likely to be supported more strongly by federal judges than by state judges, that state courts will probably construe a Supreme Court mandate more narrowly than will federal courts, and that federal courts can be expected to move in a direction hinted at by the Court more aggressively than state courts. Since all federal judges are appointed for life, it is only logical that they should be more independent of local pressures than state judges, many of whom are elected, or appointed for limited periods. The fact that state and federal judges owe their appointments to different levels of the political party hierarchy, and the historical fact that federal judges are less likely to seek future political office than are state judges, suggest a similar conclusion. Finally, the very fact of being a federal judge may produce a sense of identification with the Supreme Court which state judges would not share.

Equal Educational Opportunity: The Limits of Constitutional Jurisprudence Undefined

Abstract: The question to be faced here is whether the equal protection clause of the fourteenth amendment compels a state to afford equal educational facilities-instruction, counseling, housing, etc.-to all students attending the public schools within its domain, without regard to where they live, the wealth of their local community, or that community's desire to spend its assets on public education. Perhaps, if law were the science that some of its purveyors claim it to be, an unequivocal response could be forthcoming, even from me. Unfortunately, law has not attained the standards of an art, no less the certainty of a science. And so, in lieu of providing the statistical data or the equation that would afford a definitive answer, I shall write around the question rather than to it. I do not, however, wish to lay claim to the timidity of an angel rather than the intrepidity of a fool, especially since I tread where others have tread before me. And so I begin with an answer, albeit an answer that I do not like. For, if law is, as Mr. Justice Holmes has told us, "nothing more . . . [than] the prophecies of what the courts will do in fact,"'J or if, as Mr. Chief Justice Hughes once said, "the Constitution is what the judges say it is,"2 I am prepared to make the necessary prophecy. I should tell you then, with some assurance, that sooner or later the Supreme Court will affirm the proposition that a State is obligated by the equal protection clause to afford equal educational opportunity to all of its public school students. But I should also tell you that such a decision, if it comes sooner rather than later, will probably only be the creation of a greater problem and not a solution to this one.

The Oregon School Bill Controversy, 1922-1925

Abstract: FEW PERIODS in American history have exhibited such clear signs of nativism as the 1920's. The meteoric rise of the newly reorganized Ku Klux Klan to popularity, the success of such evangelistic entrepreneurs as Billy Sunday or Aimee Semple McPherson, the unusually bitter antagonism against aliens, particularly those from the Far East-all testify clearly to at least one important facet of "New Era" America. No section of the country was altogether able to escape some aspect of the false patriotism, religious fundamentalism, or national bigotry which was preached. In "BibleBelt" states such as Tennessee or Arkansas, for instance, anti-evolution laws were passed to forbid the teaching of Darwinian theory; in others, such as Michigan, Nebraska, and Texas, serious attempts were made to "Americanize" the schools. Only in Oregon, however, were various political and religious groups able to convince a state's citizenry that the threat of foreign domination was great enough to warrant the abridgement of educational freedom. Under the guise of guaranteeing universal patriotism, Oregonians in November, 1922, approved an initiative proposal that required nearly all children between the ages of eight and sixteen to be educated only by the state.' The closing of all secular and religious private schools could have been the only result. Had it not been for the landmark decision of the United States Supreme Court in the case of Pierce v. Society of Sisters2 which declared the law uncon-

Civil procedure, cases and materials

Abstract: The Eleventh Edition of this popular casebook provides a framework for studying both the essential and the cutting-edge issues of civil procedure while incorporating problems that test doctrinal understanding, foster case reading skills, and encourage a sense of litigation strategy. New Supreme Court cases have been integrated that impact personal jurisdiction ( McIntyre, Goodyear ), subject-matter jurisdiction ( Grable, Gunn ), pleading ( Twombly, Iqbal ), joinder ( Pimentel ), class actions ( Dukes ), and other important topics, including statutory changes such as the Jurisdiction Clarification Act. The casebook covers all of the major topics that a professor might wish to teach in a first-year course, and can easily be adapted for courses of one- or two-semesters, of different credit hours, and with varied practical or theoretical emphases. A supplement includes all updated Federal Rules, the pleadings in Twombly and Iqbal , a model case file, state materials, and other important teaching tools. For more information and additional teaching materials, visit the companion site .