Showing papers on "Supreme court published in 1989"

Ideological Values and the Votes of U.S. Supreme Court Justices

Abstract: It is commonly assumed that Supreme Court justices' votes largely reflect their attitudes, values, or personal policy preferences. Nevertheless, this assumption has never been adequately tested with independent measures of the ideological values of justices, that is, measures not taken from their votes on the Court. Using content analytic techniques, we derive independent and reliable measures of the values of all Supreme Court justices from Earl Warren to Anthony Kennedy. These values correlate highly with the votes of the justices, providing strong support for the attitudinal model.

Understandings of justice: Institutional legitimacy, procedural justice, and political tolerance.

Abstract: This research examines the linkages among institutional legitimacy, perceptions of procedural justice, and voluntary compliance with unpopular institutional decisions within the context of political intolerance and repression. Several questions are addressed, including: To what degree do judicial decisions contribute to the acceptance of unpopular political decisions? Do court decisions have a greater power to legitimize than the decisions of other political institutions? Are courts perceived as more procedurally fair than other political institutions? Do perceptions of procedural fairness-be it in a court or legislative institution-contribute to the efficacy of institutional decisions? The basic hypothesis of this research is that to the extent that an institution employs fair decisionmaking procedures, it is viewed as legitimate and citizens are more likely to comply with its decisions, even when they are unpopular. Based on an analysis of national survey data, I conclude that, although perceptions of institutional procedure have little impact on compliance, institutional legitimacy does seem to have some effect. The United States Supreme Court in particular seems to have some ability to elicit acceptance of public policies that are unpopular with the mass public. This effect is greatest among opinion leaders. I conclude with some observations about how these findings fit with the growing literature on procedural justice and with some thoughts about the implications of the findings for the protection of democratic liberty.

Republican schoolmaster: the U.S. Supreme Court, public opinion, and abortion.

Abstract: The United States Supreme Court has a historical role as a “republican schoolmaster,” inculcating virtues in the citizenry. The role as teacher to the republic also serves the interests of the Court. As the “weakest branch,” the Supreme Court needs public support if its decisions are to be effective. We investigate the Court's ability to win popular support for its rulings, specifically in the case of Roe v. Wade. The analysis shows that the Court's decision did affect public attitudes but not as previous work would predict. While support for abortions to protect health increased as a result of the Court's decision, the public became more polarized over “discretionary” abortions. The puzzle is what process can account for these disparate reactions. We develop a theory resting on interpersonal influences to explain these results, arguing that the social interpretation of events drives the differing outcomes. This theory is then tested against a purely psychological alternative. The closing discussion considers how these results can be extended to the general problem of public decisions and popular responses, including presidential actions and the influence of the media.

Law, Lawyers, and Popular Culture

Abstract: This essay concerns two distinct but related ways in which legal culture intersects with more general social norms, including those norms reflected in popular culture. In the first place, legal culture acts as an intervening variable, a mechanism for transforming norms of popular culture into legal dress and shape. In the second place, legal and popular culture, as images of each other, help explicate and illuminate their respective contents. This essay also examines some instances of popular legal culture. But I will begin with a few words of definition. By legal culture I mean nothing more than the "ideas, attitudes, values, and opinions about law held by people in a society."' Everyone in a society has ideas and attitudes, and about a range of subjects-education, crime, the economic system, gender relations, religion. Legal culture refers to those ideas and attitudes which are specifically legal in content-ideas about courts, justice, the police, the Supreme Court, lawyers, and so on. (Obviously, one aspect of legal culture is what problems and institutions are defined as legal in the first place.) The term popular culture, on the other hand, refers first, and more generally, to the norms and values held by ordinary people, or at any rate, by non-intellectuals, as opposed to high culture, the culture of intellectuals and the intelligentsia, or what Robert Gordon has called "mandarin culture."' Second, and more narrowly, it refers to "culture" in the sense of books, songs, movies, plays, television shows, and the like; but specifically to those works of imagination whose intended audience is the public as a whole, rather than the intelligentsia: Elvis rather than Marilyn Horne.3

Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model across Nations

Abstract: Theory-based personal attributes models of the civil rights and liberties and economics decision making of the Canadian Supreme Court justices serving from 1949-1985 are developed from Lipset and Rokkan's (1967) approach to explaining mass political behavior. The models show both behaviors to be influenced by Quebec/non-Quebec regional origins and religious affiliation, political party, being appointed by the last laissez faire Liberal Prime Minister, King, and having judicial and political experience. The models are reasonably potent, statistically. Their most important attributes capture crucial dimensions in contemporary Canadian politics, region, and party, and also have implications for the cross-national study of judicial behavior.

Asserting scientific authority. Cognitive development and adolescent legal rights.

Abstract: The APA uses amicus briefs to communicate scientific knowledge to the legal system. There can be tension, however, between promoting the social good through law and the disinterested reporting of scientific data. This article examines this conflict by discussing two APA amicus briefs filed in the United States Supreme Court in cases involving adolescents' abortion rights. The Court has restricted adolescents' rights to make important life decisions in part because adolescents have been presumed to lack competence and maturity. The briefs argued that developmental theory and data confirm that adolescents and adults have equivalent decision-making capacities. The scientific arguments in the briefs, however, do not justify this assertion. Analysis of the briefs illuminates some dimensions describing the role of a scientific statement in a legal brief. These dimensions identify ways to limit scientific claims about the evidence at hand to avoid overstatement. The primary danger of overstatement is that it undermines psychology's claim to expert authority in assisting in the formation of law and the shaping of social institutions.

Strategies in Certiorari Voting on the United States Supreme Court

Abstract: Do justices on the United States Supreme Court pursue strategies in their certiorari voting? We inspected seven terms from the Vinson, Warren, and Burger Courts and discovered that the justices use the error correcting, prediction, and majority strategies, particularly when the strategies are consistent with each other. Such use is not indiscriminate but usually is tempered by the presence of adverse conditions. We also investigated the error correcting and prediction strategies through the focus of liberal and conservative justices in liberal and conservative courts. These two strategies and their combination work best for conservative justices in conservative courts. Liberal justices in liberal courts are substantially more grant prone than conservative justices in conservative courts.

Dimension-based analysis of hypotheticals from supreme court oral argument

Abstract: In this paper we examine a sequence of hypotheticals taken from a Supreme Court oral argument. We use the idea of a “dimension,” developed previously in our case-based reasoning system HYPO, to analyze the hypotheticals and to speculate on how the Justices might have arrived at them. The case we consider is taken from the area of Fourth Amendment law concerning warrantless search and seizure.

The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective

Abstract: This study conceptualizes the U.S. Supreme Court as a political institution whose decisionmaking behavior over time can be effectively explained and predicted. A four-variable model is constructed as a means of better understanding the Court's policy outputs in criminal justice disputes. This model represents Court decisions as a function of the institution's political composition, the generally stable attitudes of its members, its policymaking priorities, and the political environment. The results indicate that the model has substantial explanatory and predictive capacity when applied to Supreme Court criminal rights cases from 1946 to 1986.

Honorable Justice: The Life of Oliver Wendell Holmes

Abstract: The first biography of Supreme Court Justice Oliver Wendell Holmes, the best known figure in the history of American law. His book "The Common Law" is still in print after 100 years, and is considered to be one of the great works of American legal history. Holmes was a complex figure, considerably different from the grandfatherly figure of popular legend. Although he was seen as a role model by three generations of liberal reformers, he at one time adhered to a primitive type of fascism. This account of his life and work spans the years from the Civil War battlefields of his youth, to the impassioned constitutional battles of his old age.

Covering Conflict and Controversy: Measuring Balance, Fairness, Defamation.

Abstract: Most stories lack balance and in 28% of instances other side of controversy was not contacted. The relationship between formal journalism codes of ethics and liability in libel and other legal actions has been a subject of growing-and usually alarmed-concern recently. The concern is a natural result of the U.S. Supreme Court's command in 1974 in Gertz v. Robert Welch, Inc.1 that plaintiffs in libel suits must prove fault to win against a media defendant. In most states, negligence has become the fault standard for private figures; actual malice was established as the fault requirement for public figures by the Court itself.2 Proof of fault requires proof of a departure from standards of behavior which either exist or should exist as a matter of duty. In tort actions where a media defendant is involved, the requirement calls for evidence that a reporter or other media staffer departed from some standard of behavior, referred to in tort law as the "standard of care."3 Two opposing positions have developed. One argues that application of journalism codes of ethics as standards is inherently undesirable, either because it confuses the issues of moral duty and legal duty,4 or because it attempts to formalize statements of principle and aspiration.5 The other approach openly advocates application of journalism codes of ethics in libel. Since libel inquires into the behavior of journalists, and since professional standards represented in codes are evidence of standards within the news business, codes provide a partial common ground for assessing media performance.6 The weakness in advocating code application is that codes are inherently philosophical. Only a handful of provisions in the various codes of journalism organizations are specific enough to prove or disprove.7 The weakness of those who oppose code application is that no better source for generally-agreed-upon standards exists. Codes of ethics remain the only available evidence of standards other than potential statements from expert witnesses or from the mouths of defendants themselves. Without some point of reference, the fact question for a jury will essentially be ad hoc in every libel case. That is actually the situation in most states using the ordinary person negligence standard: juries simply substitute their judgment for that of the reporters and editors, resulting in an alarmingly high rate of favorable verdicts for plaintiffs.8 Something better is needed. One of the authors has argued that the application of a journalistic malpractice standard in libel actions will benefit news media defendants in most cases. Just as likely, it will ensure defeat in others.9 A journalism malpractice standard assumes that violation of professional standards may result in defeat in libel suits. But libel has many elements a plaintiff must prove. The very first is that an assertion has a defamatory meaning. No matter how negligent a story, lack of defamatory meaning precludes a successful libel suit. This study is a first step in determining the relationship between defamation and adherence or non-adherence to professional norms. Defamatory meaning became the focus of this study because it is primary in libel. It is not only the first building block of libel-it is also the first question typically addressed by a court, resulting in dismissal if defamatory meaning cannot reasonably be found.10 The Supreme Court has made defamatory meaning relevant by stressing that there is an analytic difference if a statement makes "substantial danger to reputation apparent."11 It is reasonable to assume assertions harmful to reputation place a reporters on notice to be more careful; the courts agree. The assertions made in scholarly writings on both ethics and libel are overwhelmingly normative, and therefore untested. So long as that is true, advocating application of professional standards remains mere opinion, however much it is shared by courts. …

‘A capacity for evil’: The 1915 supreme court Mutual Decision

Abstract: (1989). ‘A capacity for evil’: The 1915 supreme court Mutual Decision. Historical Journal of Film, Radio and Television: Vol. 9, No. 1, pp. 59-78.

Auto Safety: Assessing America's Performance

Abstract: The Pluralist Perspective The Birth of Federal Regulation The "Technology-Forcing" Strategy The Nixon White House and Ford's "Better Idea" Negotiating Safety Congressional Stalemate "Regulatory Relief" and the Supreme Court The Master Pluralist A New Strategy at Ford Assessing America's Performance

An Economic Analysis of Sex Discrimination Laws

Abstract: of the United States at 40 table 49 (cited in note 19) Of course, this figure may decline since fewer women are marrying nowadays On the changing demographics of American women, see Heidi I Hartmann, Changes in Women's Economic and Family Roles in PostWorld War II United States, in Lourdes Beneria and Catharine R Stimpson, eds, Women, Households, and the Economy 33 (Rutgers, 1987) 22 In 1986, out of 51,704,000 married couples in the US, only 181,000 (035 percent) consisted of a white and a black Statistical Abstract of the United States at 40 table 50 (cited in note 19) 23 This depends in part, however, on the structure of family and divorce law, which determines the wife's entitlements in her husband's income 24 Although there is discrimination against men, I shall ignore it A more important phenomenon that I do discuss is policy that is designed to combat discrimination against women and has the incidental effect of harming men This content downloaded from 2074613118 on Sun, 11 Sep 2016 05:47:03 UTC All use subject to http://aboutjstororg/terms 1318 The University of Chicago Law Review [56:1311 lematic than it may appear to be, because it leaves unresolved the question whether it is discriminatory (in a sense pertinent to public policy) to treat a woman differently because of a characteristic that no men but only some women have, such as the capacity to bear children The Supreme Court in Gilbert held that such differentiation was not discriminatory,25 but the Court was overruled by Congress I shall follow Congress's approach and assume that discrimination based on pregnancy is a form of sex discrimination-which is not to say, of course, that it necessarily is

Attorney Argumentation and Supreme Court Opinions

Abstract: This study investigates the relationship between argumentation advanced in the briefs and oral argument of four Supreme Court cases and the reasoning proffered by the Court in the opinion justifyin...

Battle for Justice: How the Bork Nomination Shook America

Abstract: The struggle for and against Robert Bork's Supreme Court nomination was a soul-searching dissection of the country's values. This book investigates both sides of the issue with scores of interviews with key figures as the most critical political fight during the Reagan years unfolds.

Minority Identity, Muslim Women Bill Campaign and the Political Process

Abstract: The focus of this paper is on the movement of 1985-86 against the momentous Supreme Court verdict on the grant of maintenance to Shah Bano, a divorced Muslim woman. Who were the chief campaigners, and what ideological spectrum did they represent? Why did their campaign evoke such powerful responses from a wide spectrum of Muslim society? How did Muslim women in general respond to the controversy generated by the Supreme Court judgment and the Muslim Women Bill? And, finally, why did the government introduce an amendment which curtailed the rights of Muslim women?

Constituencies, ideology, and the demand for abortion legislation

Abstract: If the Supreme Court were to overturn its basic decision making abortion legal, abortions would not suddenly become illegal. This issue would revert to the states. State legislatures would have to pass new laws if they wanted to ban abortions. Using the Senate vote on the proposed Hatch/Eagleton Amendment, which would have reversed the Supreme Court's decision to legalize abortion, a model was developed to identify the various constituencies that may be significant in determining whether a state would continue to allow legal abortions. Empirical analysis finds women in white-collar occupations and nonwhites are demanders of legal abortions, while evangelical Christians have a negative impact on the continuation of legal abortions. The empirical results also suggest that there exists a direct relationship between the liberal ideology of a state concerning the role of women in society and its political support of legal abortions. An implication of this study is that, if the legal status of abortion were to revert to the states, nineteen states would almost certainly continue to allow legal abortions while five other states are highly probable. But eighteen states would almost certainly abolish legal abortions and eight other states are unlikely to continue to allow legal abortions.

Affirmative Action and the Courts

Abstract: While many feel that affirmative action is necessary to correct centuries of discrimination against women and minorities in the labor force, others believe it is simply discrimination in reverse. The conflicting opinions that exist throughout American society on this issue are mirrored in the decisions of the courts. The federal courts have rendered seemingly contradictory rulings in this area, and many lower court decisions have been reversed by the U.S. Courts of Appeals and the U. S. Supreme Court. The Justices of the Supreme Court have displayed a noticeable lack of unity on questions of affirmative action.

The Court vs. Congress: Prayer, Busing, and Abortion

Abstract: Since the early 1960s the Supreme Court and its congressional critics have been locked in a continuing dispute over the issues of school prayer, busing, and abortion. Although for years the Court's congressional foes have introduced legislation designed to curb the powers of the federal courts in these areas, they have until now failed to enact such proposals. It is likely that these legislative efforts and the present confrontation with the Court will continue. Edward Keynes and Randall Miller argue that Congress lacks the constitutional power to legislate away the powers of the federal courts and to prevent individuals from seeking redress for presumed infringements of their constitutional rights in these areas. They demonstrate that neither the framers nor ratifiers of the Constitution intended the Congress to exercise plenary power over the appellate jurisdiction of the Supreme Court. Throughout its history the Court has never conceded unlimited powers to Congress; and until the late 1950s Congress had not attempted to gerrymander the Court's jurisdiction in response to specific decisions. But the authors contend this is just what the sponsors of recent legislative attacks on the Court intend, and they see such efforts as threatening the Court's independence and authority as defined in the separation of powers clauses of the Constitution.

The missing link political activists and support for school prayer

Abstract: Explanations for the wide gap between strong public support for school prayer and lack of support in Congress have focused on the attributes of the public. Here another important explicand is investigated: the characteristics of political activists. We find that activist opinion more nearly matches congressional behavior on school prayer than does public opinion. While many of the same demographic and religious variables explain support for school prayer among activists and the public, ideology appears to be more important among activists. One of the most resilient political controversies of the past decade has been over prayer in the public schools. Set off by Supreme Court rulings in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), this debate has elicited endless litigation and constant efforts to amend the Constitution, evade Supreme Court edicts, or circumvent the decisions through legislative action by Congress or the states. One reason for the persistent agitation is easy to discern: a majority of Americans favor religious exercises in public schools. Although various polls differ-in large part because of question wording (Feig and Wall, 1987)-they concur in finding impressive public support for school prayer, support which has declined only modestly over time. The 1974 General Social Survey found 67.9% favoring required reading of the Lord's Prayer or Bible verses, a figure which dipped to 59.7% in 1982 and 55.6% in 1985. In a more "voluntarist" vein, 72.1% of voters in the 1980 National Election Study favored allowing schools to start each day with prayer; four years later the figure remained at 71.5% (Elifson and Hadaway, 1985; Feig, 1986). In 1983 Gallup found 81% of the "aware" public favoring a constitutional amendment allowing JOHN C. GREEN is Associate Professor of Political Science and Acting Director of the Ray Bliss Institute for Applied Politics at the University of Akron. JAMES L. GUTH iS Professor of Political Science and Chairman of the University Faculty at Furman University. Public Opinion Quarterly Volume 53:41-57 ? 1989 by the American Association for Public Opinion Research Published by The University of Chicago Press / 0033-362X/88/0053-01/$2.50 This content downloaded from 157.55.39.152 on Sat, 26 Nov 2016 04:20:38 UTC All use subject to http://about.jstor.org/terms 42 John C. Green and James L. Guth voluntary school prayer, with 48% backing the amendment "very strongly." Despite this massive support, all school prayer amendments have failed in Congress. Although the 1980 and 1984 GOP platforms endorsed school prayer and President Reagan put it on the "front burner" in 1983-84, the Republican Senate mustered only 56 of the needed 67 votes. The Democratic House of Representatives refused to bring the measure to the floor, although a similar appropriations rider failed to win even a majority, 194-215 (Congressional Quarterly, 1984: 8-9S, 88-89H). Both houses split along party and ideological lines: in the Senate 67% of the Republicans but only 42% of the Democrats voted for the amendment, while in the House the comparable figures were 79% and 29%. Similarly, if members are divided into equal thirds by Americans for Democratic Action ratings, the most conservative members favored the amendment by 89% (Senate) and 83% (House), the moderates gave 41% and 31% of their votes, and the most liberal third provided only 15% and 5% support. Far from responding to public attitudes, many legislators apparently ignore them. Why the strong resistance? Earlier studies have contended that the characteristics of school prayer advocates, not their numbers, have been the crucial weakness of the restorationist movement. Elifson and Hadaway (1985) argue that this majority may be "too silent" to be heard by Congress: proponents have lower incomes, lower status jobs, and less education, while legislators have the opposite traits, which are associated with opposition to school prayer. In addition, school prayer may not be salient to many proponents, and thus they may not press the issue. Finally, Elifson and Hadaway suggest that religious leaders, an elite to which Congress may pay disproportionate attention on this issue, are themselves divided over school prayer. These explanations all have some validity, but they leave out other key elites, especially political activists. The partisan and ideological cleavages in Congress hint that legislators are responding not so much to the public as to their "primary constituents," those who provide crucial campaign support: volunteer workers, financial backers, and party and issue activists (Fenno, 1978:19). Indeed, many scholars hold that such activists provide the most effective linkage between the public and their representatives (Luttbeg, 1981). They play crucial roles in the two major paths of influence between legislators and their constituents: directly by means of electoral choice and indirectly through shared characteristics (Miller and Stokes, 1963). In these capacities, activists help make representative democracy possible on a large scale, allowing the public opportunities to check the behavior of elected officials, if not to provide instruction on their preferences (Dahl, 1982). And this process may work in reThis content downloaded from 157.55.39.152 on Sat, 26 Nov 2016 04:20:38 UTC All use subject to http://about.jstor.org/terms Political Activists and School Prayer 43 verse as well: activists inform and educate the public about the positions of officials (Fenno, 1978). By the same token, however, biases in the attitudes, behavior, and numbers of activists raise serious questions about the functioning of democratic institutions. While deviations from public opinion can sometimes support democratic procedural values (as in support for civil liberties), in general they must be regarded as suspect. In this article, we consider attitudes on school prayer among a large and important group of political activists: major contributors to parties and ideological political action committees (PACs). As we shall see, the division of opinion among these elites is much different than that in the mass public, but quite similar to that in Congress.

The Computer in German and American Constitutional Law: Towards an American Right of Informational Self-Determination

Abstract: In 1890 Warren and Brandeis announced a "right to privacy" in an article in the Harvard Law Review.' Since this article drew its famous phrase, "the right to be let alone," from a tort treatise published a few years earlier,2 the festivities celebrating the centennial of the right to privacy need not wait until 1990. Before the festivities can begin, however, we must decide if they are merited. The privacy article of Warren and Brandeis protests against the yellow press and attempts to provide a legal basis for protecting the individual from abusive journalistic practices.3 Another privacy issue of that era was the attempt by the government to compel production of private books and papers. This activity led to the first great Fourth Amendment case of the Supreme Court, Boyd v. United States.4 Over the next decades, a new tort, a privacy tort, was created in most states and some constitutional protection was given to letters, personal papers and other personal effects. In their article, Warren and Brandeis declared that "[t]he intensity and complexity of life, attendant upon advanced civilization"

Federal Regulation of Aliens and the Constitution

Abstract: In two cases decided in the afterglow of the centennial of the U.S. Constitution, the Supreme Court said nearly everything the modern lawyer needs to know about the source and extent of Congress’s power to regulate immigration. The cases sustained the constitutionality of the first significant congressional restrictions on immigration—the shameful Chinese exclusion laws. Constitutional analysis of the immigration power has yet to shed the original sins of the Court’s ratification of Congress’s ignominious legislation.

Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause:

Abstract: TUDENTS of the Supreme Court of the United States often view it through &dquo;eras.&dquo; Some are named after Presidents whose appointments molded the identity of the Court (e.g., the &dquo;Roosevelt Court&dquo;); others are defined by dominant judicial personalities (e.g., the &dquo;Marshall Court&dquo;). These labels reflect our perception of the fulcrum of influence on the Court. When Warren Burger replaced Earl Warren, speculation arose about a pending shift in judicial eras. Yet, upon Burger’s retirement the consensus was that he left &dquo;a Supreme Court that in terms of judicial doctrine has not been notably different from the one he inherited.&dquo;

Comparing the Policy Positions of Supreme Court Justices from Different Periods

Abstract: T HHE small size of the Supreme Court creates a number of difficulties for analysis of decision making on the Court. One of these difficulties concerns explanation of differences among justices in their voting behavior. The membership of 435 in the House of Representatives allows sophisticated analysis of characteristics associated with individual voting behavior. In contrast, the Supreme Court's membership of 9 largely precludes even the most elementary analysis of such characteristics. Largely for this reason, some students of the Court have undertaken analyses that go beyond the nine justices who sat at a single time to include all the justices who served during a period of several decades. C. Neal Tate (1981) and S. Sidney Ulmer (1986), for instance, have taken this approach in examining relationships between personal background characteristics and voting behavior (see also Handberg 1986). The benefit of this approach in increasing the number of justices to analyze is counterbalanced by a problem of comparability. The most systematic basis for comparisons among justices, and the one that scholars typically use, is their voting support for particular values or types of claims made by litigants. However, since justices who sat during different parts of a period faced different sets of cases, such measures of their voting behavior are not fully comparable. Differences among justices in support for certain claims or values might result from differences in the case stimuli to which they responded rather than from true differences in their policy positions. If one justice supported challenges to government economic regulation more often than another, that difference might stem at least in part from the greater "difficulty" of supporting such challenges in the cases that the second justice faced.