Showing papers on "Supreme court published in 1993"

The Supreme Court and the Attitudinal Model Revisited

Abstract: This book, authored by two leading scholars of the Supreme Court and its policy making, systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants: the legal and rational choice. Using the US Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions. The book will be the definitive presentation of the attitudinal model as well as an authoritative critique of the legal and rational choice models. The book thoroughly reflects research done since the 1993 publication of its predecessor, as well as decisions and developments in the Supreme Court, including the momentous decision of Bush v. Gore.

The Supreme Court and the Attitudinal Model

Abstract: Preface 1. Introduction: Supreme Court policy making 2. Models of decision making 3. A political history of the Supreme Court 4. Staffing the Court 5. Getting into court 6. The decision on the merits process 7. Opinion assignment and opinion coalitions 8. The Supreme Court and constitutional democracy 9. The impact of judicial decisions 10. Conclusion Appendix Index.

The supreme court as a countermajoritarian institution? the impact of public opinion on supreme court decisions

Abstract: Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Court's collective decisions. The Court's ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Court's ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.

The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary

Abstract: Theoretical and descriptive studies of the Supreme Court exhibit a curious parallel. Both usually begin from the premise that judicial review is “a deviant institution in a democratic society.” Much normative work claims that independent judicial policymaking is rarely legitimate in a democracy because, with few exceptions, elected officials rather than appointed judges should resolve social controversies. In a frequently cited passage, Alexander Bickel asserts that the Supreme Court is “a counter-majoritarian force” in our system of government. Much empirical work, by comparison, insists that independent judicial policymaking seldom takes place in a democracy because, with few exceptions, judges appointed and confirmed by elected officials sustain whatever social policies are enacted by the dominant national coalition. Robert Dahl observes that it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite.”

The Partial Constitution

Abstract: American constitutional law is at a crossroads As it is currently interpreted, the Constitution is partial, Sunstein asserts It is, first of all, biased Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice The Constitution is partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations - and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech", and government funding of religious schools and the arts In an especially striking argument, he claims that the equal protection clause of the 14th Amendment - not the right to privacy - protects a woman's right to choose abortion Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equals - and in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy

The Language of Judges

Abstract: Since many legal disputes are battles over the meaning of a statute, contract, testimony, or the Constitution, judges must interpret language in order to decide why one proposed meaning overrides another. And in making their decisions about meaning appear authoritative and fair, judges often write about the nature of linguistic interpretation. In the first book to examine the linguistic analysis of law, Lawrence M. Solan shows that judges sometimes inaccurately portray the way we use language, creating inconsistencies in their decisions and threatening the fairness of the judicial system. Solan uses a wealth of examples to illustrate the way linguistics enters the process of judicial decision making: a death penalty case that the Supreme Court decided by analyzing the use of adjectives in a jury instruction; criminal cases whose outcomes depend on the Supreme Court's analysis of the relationship between adverbs and prepositional phrases; and cases focused on the meaning of certain words in the Constitution. Solan finds that judges often describe our use of language poorly because there is no clear relationship between the principles of linguistics and the jurisprudential goals that the judge wishes to promote. A major contribution to the growing interdisciplinary scholarship on law and its social and cultural context, Solan's lucid, engaging book is equally accessible to linguists, lawyers, philosophers, anthropologists, literary theorists, and political scientists.

Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries

Abstract: Fishing rights are one of the major areas of dispute for aboriginals in Canada today. Dianne Newell explores this controversial issue and looks at the ways government regulatory policy and the law have affected Indian participation in the Pacific Coast fisheries.For centuries, the economies of Pacific Coast Indians were based on their fisheries. Marine resources, mainly salmon, were used for barter, trade, ceremony, and personal consumption. This pattern persisted after the arrival of European and Asian immigrants, even during the first phases of the non-Indian commercial fishing industry when Indian families were depended upon for their labour and expertise. But as the industrial fishery grew, changes in labour supply, markets, and technology rendered Pacific Coast Indians less central to the enterprise and the aboriginal fishery became legally defined as food fishing. By the late 1960s, rigid new licence limitation policies were introduced and regulations transformed the processing sector. The result was reduced participation for fishermen and shoreworkers and the opportunities for Indian men and women declined dramatically. Government programs to increase or even stabilize Indian participation ultimately failed. Newell concludes that the governments of Canada and BC have historically regarded the aboriginal fishery narrowly and unjustly as a privilege, not a right, and have in fact moved against any changes which might put Indians into competition with non-Indians. Recently, BC Indians won a Supreme Court victory in Sparrow (1990) that will make it easier to change federal fisheries policies but aboriginal fishing rights remain before the courts and under federal government investigation.Awarded the Canadian Historical Association's British Columbia and Yukon Certificate of Merit Award for 'Professor Newell's courageous critique of a history of mismanagement and misunderstanding in one of the region's key sectors should provide pause for thought to anyone with an interest in the workings of the modern state.'

Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts

Abstract: Justice Powell remarked twenty years ago that '[u]ntil international tribunals command a wider constituency, the courts of the various countries afford the best means for the development of a respected body of international law.' Few would challenge this statement which underlines the promise of world-wide development and enforcement of international law by national courts. But can national courts really live up to this challenge? Apparently, there are weighty factors that inhibit national courts from the rigorous application and enforcement of international law. This is particularly the case when the application of international norms is sought in an attempt to constrain the activities of the national court's executive. The somewhat idyllic statement of Justice Powell is the starting point for this article. Sharing his aspiration, this article endeavours to explore its limitations. Only by understanding the factors that hinder national courts from becoming the enforcement agencies of international law will it be possible to assess the real potential of national courts in the international arena and the means to realize i t The first part of the article is an inquiry into die practice of national courts with respect to the application of international law. This comparative analysis demonstrates the existence of 'a similar pattern of behaviour in most jurisdictions. It provides the background for assessing the reasons that prompt most national courts to adopt an apprehensive approach towards international norms, and die circumstances in which such an approach could be revised. In light of this general study, the second part of die article examines more closely the jurisprudence of die Israeli Supreme Court in this context The claim I shall make in the second part is that die continuation of die

Capital punishment and contemporary values: People's misgivings and the court's misperceptions

Abstract: IIwenty years after the Supreme Court struck down existing death penalty statutes (Furman v. Georgia 1972) and a day after Justice Thurgood Marshall's death, the senior Justice of the U.S. Supreme Court, Harry Blackmun, charged the Court with coming "perilously close to murder" in its latest death penalty ruling. He made this charge in an unusual oral dissent from a decision which held that a federal appeals court could not hear newly developed evidence of a death row inmate's possible innocence (Herrera v. Collins 1992). The Court, nine months earlier, had barred a lower federal court from hearing new evidence challenging execution by asphyxiation as cruel punishment (Gomez v. U.S. District Court 1992) and had then taken the unprecedented step of ordering no further stays of execution (Vasquez v. Harris 1992).1 How did we reach this point when 20 years earlier the Court had declared that the death penalty as applied was too arbitrary to be constitutionally ac-

Understanding the new politics of abortion: a framework and agenda for research

Abstract: A conservative majority on the Supreme Court, recent Supreme Court decisions such as Webster v. Reproductive Health Services and Hodgson v. Minnesota that give states more leeway to set abortion standards, actions by state legislatures and governors to pass new, tougher state antiabortion laws, as well as efforts by the Reagan and Bush administrations to prevent workers at federally funded family planning clinics from discussing with clients the availability of abortion services point to a new political climate surrounding the abortion issue. These recent developments also increase the chances that Roe v. Wade will be overturned in the future. This essay defines the parameters of a "new" politics of abortion, offers a framework for understanding this post-Webster abortion politics, and suggests an agenda for future research. The argument advanced here is that the politics of abortion can best be understood by examining the nature and scope of the conflict over abortion and the institutional context within...

Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court

Abstract: Each year thousands of cases and litigants come to the Supreme Court. How can the Court find the most important cases to decide? The law of obscenity illustrates particularly well the Court's problem as it constructs its plenary agenda. Using data drawn from petitions for certiorari and jurisdictional statements filed with the Supreme Court from 1955 to 1987, we formulate and test a model of case selection in which professional obscenity lawyers and organized interests figure as critical elements in the process of agenda building. We also encounter strong evidence of the Court's differential treatment of several different litigants. Moreover, the calculus of selection changed markedly over time, as the Court itself changed; the Burger Court and Warren Court weighed several of the criteria quite differently.

Criminalizing the American Juvenile Court

Abstract: Progressive reformers envisioned a therapeutic juvenile court that made individualized treatment decisions in the child's "best interests." The Supreme Court's Gault decision provided the impetus for transforming the juvenile court from an informal welfare agency into a scaled-down criminal court. Since Gault, the juvenile court procedures increasingly resemble those of adult courts, although in some respects, such as assistance of counsel, juveniles receive less adequate protections. Judicial and legislative changes have altered the juvenile court's jurisdiction over noncriminal status offenders and serious young offenders-as the former are diverted from the system, the latter are transferred to adult criminal courts. Juvenile courts increasingly punish youths for their offenses rather than treat them for their "real needs." These charges eliminate most differences between juvenile and criminal courts. The juvenile court must either develop a new rationale and mandate or face further erosion and redundancy.

Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism

Abstract: Acknowledgements. Introduction. Part I: Judicial Review and Constitutional Interpretation. 1: Judicial Review and the Paradox of Liberal Constitutionalism. 2: The Dimensions of Constitutional Interpretation. Part II: The Supreme Court and the Charter. 3: Fundamental Freedoms. 4: Legal Rights, Fundamental Justice, and Criminal Procedure. 5: Equality Rights. Part III: Public Policy and the Charter. 6: Democracy, Public policy, and the Charter. 7: Confronting Judicial Supremacy. Conclusion. Appendix: The Canadian Charter of Rights and Freedoms. Notes. Bibliography. Index of Cases Cited. Subject Index

A History of the Supreme Court

Abstract: When the first Supreme Court convened in 1790, it was so ill-esteemed that its justices frequently resigned in favor of other pursuits. John Rutledge stepped down as Associate Justice to become a state judge in South Carolina; John Jay resigned as Chief Justice to run for Governor of New York; and Alexander Hamilton declined to replace Jay, pursuing a private law practice instead. As Bernard Schwartz shows in this landmark history, the Supreme Court has indeed travelled a long and interesting journey to its current preeminent place in American life. In A History of the Supreme Court, Schwartz provides the finest, most comprehensive one-volume narrative ever published of our highest court. With impeccable scholarship and a clear, engaging style, he tells the story of the justices and their jurisprudence--and the influence the Court has had on American politics and society. With a keen ability to explain complex legal issues for the nonspecialist, he takes us through both the great and the undistinguised Courts of our nation's history. He provides insight into our foremost justices, such as John Marshall (who established judicial review in Marbury v. Madison, an outstanding display of political calculation as well as fine jurisprudence), Roger Taney (whose legacy has been overshadowed by Dred Scott v. Sanford), Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and others. He draws on evidence such as personal letters and interviews to show how the court has worked, weaving narrative details into deft discussions of the developments in constitutional law. Schwartz also examines the operations of the court: until 1935, it met in a small room under the Senate--so cramped that the judges had to put on their robes in full view of the spectators. But when the new building was finally opened, one justice called it "almost bombastically pretentious," and another asked, "What are we supposed to do, ride in on nine elephants?" He includes fascinating asides, on the debate in the first Court, for instance, over the use of English-style wigs and gowns (the decision: gowns, no wigs); and on the day Oliver Wendell Holmes announced his resignation--the same day that Earl Warren, as a California District Attorney, argued his first case before the Court. The author brings the story right up to the present day, offering balanced analyses of the pivotal Warren Court and the Rehnquist Court through 1992 (including, of course, the arrival of Clarence Thomas). In addition, he includes four special chapters on watershed cases: Dred Scott v. Sanford, Lochner v. New York, Brown v. Board of Education, and Roe v. Wade. Schwartz not only analyzes the impact of each of these epoch-making cases, he takes us behind the scenes, drawing on all available evidence to show how the justices debated the cases and how they settled on their opinions. Bernard Schwartz is one of the most highly regarded scholars of the Supreme Court, author of dozens of books on the law, and winner of the American Bar Association's Silver Gavel Award. In this remarkable account, he provides the definitive one-volume account of our nation's highest court.

The Brown Decision Revisited: Mathematizing Social Problems:

Abstract: Almost 40 years after the landmark Brown vs. Board of Education decision, African-Americans are still attempting to understand its meaning and significance in their daily lives. Unaware of the potential for divergent constructions of equality, citizens who were barred from equal access to schooling continue to struggle with poor-quality schooling. This article argues that a restrictive form of equality, rather than an expansive one, limits the ability of African-Americans to benefit equally from schooling in the nation `public schools. The article also suggests that the Brown decision represents the Supreme Court's attempt to apply a largely mathematical solution to a social problem. The failure of the court to provide a verbal interpretation of the mathematical model it constructed left individual school districts free to develop educational responses that failed to address the needs of African-American students. The article concludes with an expansive vision of a desegregated/integrated school that reco...

`Freshman effects' for Supreme Court justices

Abstract: Over the years, there has been substantial interest in whether new Supreme Court justices experience what have been known as "freshman effects." The results of several studies examining various aspects of the effects are, at best, mixed. I offer four reasons for these mixed results. First, most previous studies test the new justice's behavior against that of the other justices, rather than his or her own later behavior. Second, many previous studies focus on opinion writing rather than voting behavior. Third, most previous studies have not considered possible differences from one issue area to another. Fourth, previous studies did not control for the direction of the lower court decision. After establishing that some justices do experience these effects, I examine possible explanations as to why some justices experience them and others do not.

International Law: Cases and Materials

Abstract: This classic international law casebook has been updated to cover recent case law, including the International Court's Extradite or Prosecute (Belgium v. Senegal) case, and the Supreme Court's decisions in Samantar v. Yousef (on foreign sovereign immunity) and Kiobel v. Royal Dutch Petroleum (on the Alien Tort Statute). With extraordinary range and depth, this casebook probes "hot topics" such as the Syrian civil war, the seizure of pirates, and the ICC's indictments of African leaders, all calculated to provoke engaging classroom discussions. This casebook is designed for introductory and advanced classes, with detailed readings on the structure and actors of international law and on specialized areas.

The Supreme Court, Critical Nominations, and the Senate Confirmation Process

Abstract: This study demonstrates all nominations to the U.S. Supreme Court are not equal. I focus on nominations which are "critical" in the sense that, if successful, they would result in important shifts in partisan coalitions on the Court, and, as a consequence, are of considerable importance so far as the policy outcomes of that institution are concerned. An empirical test of the impact of critical nominations clearly demonstrates the importance of the nature of the vacancy in confirmation outcomes. While almost half of the critical nominations to the Court have failed, the model shows nominations outside this category are 12 times more likely to be confirmed by the Senate. Furthermore, the success of the model in predicting nomination outcomes suggests the notion of critical nominations fills a large gap in our understanding of the dynamics of the confirmation process. The model correctly predicts 94% of successful nominations and an impressive 74% of those nominations that have failed. When the model is appl...

Interest Group Success in the Courts: Amicus Participation in the Supreme Court

Abstract: Over the past two decades there has been a rapid increase in the number of amicus curiae briefs filed in the Supreme Court. Some cases studied suggest that these briefs may have a substantial effec...

Abortion and American politics

Abstract: The complex interplay between interest groups the states the courts Congress and the president and executive branch in shaping US abortion policy during 1973-92 is illustrated without advocacy of one position over another. The abortion controversy is used as a case study of the fluidity of the US constitutional system and the way controversial decisions are subject to challenge evasion and overturning by other branches of government. Presented is a historical review of abortion rulings from the 1973 Roe vs. Wade decision through the 1989 Webster vs. Reproductive Health Services--a turning point in abortion politics marking a retreat from Roe. Also considered are possible consequences of President Clintons election for future policy. By 1992 38 states had abortion-related bills pending in legislatures and the locus of the abortion controversy had moved to the state level. The Clinton Administration has rescinded Reagan-Bush policies that restricted abortion counseling by organizations receiving federal funds and has the potential to shift the ideological balance in federal courts as well as the Supreme Court. It can be predicted however that abortion politics will long continue to reflect the conflicts between reconciling tensions between rights and responsibilities private versus public morality and self-determination against majoritarianism and communitarianism.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

Abstract: Now that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

The Growth of Segregation in American Schools: Changing Patterns of Separation and Poverty Since 1968

Abstract: Southern segregation grew significantly from 1988 to 1991 and segregation of African-American students across the U.S. also increased. This study provides national data that shows the relationship of segregation to poverty and where segregation is either concentrated or remains highly integrated. This report also explores the way in which a state's pattern of school district organization relates to the segregation of its students after the Supreme Court's 1974 decision in the Detroit case, Milliken v. Bradley.

Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council

Abstract: There was every reason to expect 1992 to be a year of dramatic change in the constitutional law of takings. The United States Supreme Court granted certiorari to four cases involving takings issues, each of which could have led to major revisions in takings jurisprudence. In PFZ Properties, Inc. v. Rodriguez, 1 a Puerto Rican land developer claimed that the government had effectively denied him the right to use his property through its delay and evasiveness in acting on his permit application. The Court could have used Rodriguez to define constitutional limits on anti-development tactics, but instead it dismissed the writ following oral argument.2 General Motors Corp. v. Romein3 involved a regulatory law which upset contractual arrangements between an employer and its employees regarding workers' compensation benefits. While it appeared that the Court might revisit the retroactivity doctrine, instead it affirmed the validity of retroactive economic regulation, just as it has done several times in recent years.4 Retroactivity doctrine is important to takings cases because it potentially limits the application of new regulatory standards to existing contractual relationships such as that of employer and employee. Yee v. City of Escondido5 concerned the validity of a rent control ordinance applied to rentals of mobile home pads.6 The Court

Authoritarianism and the functions of courts: A time series analysis of the Philippine Supreme

Abstract: Focusing on the independent and powerful pre-martial law Philippine Supreme Court, we investigate the impact of the establishment and breakdown of authoritarianism on the court's performance of the functions of conflict resolution, social control, and administration. We develop hypotheses concerning and models of the impacts of the onset, consolidation, and breakdown of martial law authoritarianism under Ferdinand Marcos on that

Strategic retirements: A political model of turnover on the United States Supreme Court

Abstract: The president's ability to nominate justices to the United States Supreme Court is one of his most powerful tools for advancing his policy goals. To maximize the use of this tool it is important that he be able to determine how reasonable it is to expect a retirement from the Court during his presidency. Prior research is inconclusive as to whether Court retirements are politically motivated. In this study I develop and test a political model of Court retirements. The results from estimating the model using exponential Poisson regression show there to be an identifiable political element relating to the timing of retirements from the Court.

The Legislative Veto: Invalidated, It Survives

Abstract: In INS v. Chadha,' the Supreme Court invoked a strained theory of separation of powers to strike down Congress's use of a "legislative veto," a device used for a half century to control the executive branch. Through the use of the legislative veto, Congress delegated power to the executive branch on the condition that Congress could control executive decisions without having to pass another law. These legislative controls, short of a public law, included one-house vetoes, two-house vetoes, and even committee vetoes. Congressional actions by a legislative veto were not presented to the President for his signature or veto. It may appear that this procedure thrust Congress unfairly (or even unconstitutionally) into administrative decisions that should have been left to executive officials; the initiative for the legislative veto came from President Hoover, however, and executive officials tolerated the arrangement for decades because it was in their interest. By attaching the safeguard of a legislative veto, Congress was willing to delegate greater discretion and authority to the executive branch. If Congress failed to invoke the legislative veto, the executive branch could, in effect, "make law" without further congressional involvement. The experiment with the legislative veto lasted for five decades before it was invalidated by the Supreme Court in 1983. In response to Chadha, Congress eliminated the legislative veto from a number of statutes. The legislative veto continues to thrive, however, as a practical accommodation between executive agencies and congressional committees. More than two hundred new legislative vetoes have been enacted since Chadha. In addition, legislative vetoes of an informal and nonstatutory nature continue to define executive-legislative relations. The meaning of constitutional law in this area is evidently determined more by pragmatic agreements hammered out between the elected branches than by doctrines announced by the Supreme Court. The next part of this article explicates the Court's decision in Chadha. Part III discusses the origins of the legislative veto and its traditional place in the

Are Laws against Assisted Suicide Unconstitutional

Abstract: The Supreme Court, reluctant to find constitutional rights in areas marked by divisive social and legal debate, is not likely to constitutionalize a right to assisted suicide. The Court should cleave to the tradition of discouraging suicide and criminalizing its assistance.

The Supreme Court Bar: Legal Elites in the Washington Community

Abstract: Who represents litigants in the Supreme Court of the United States? Kevin T. McGuire shows that the most sophisticated of them have the advantage of representation by an elite counsel made up of former clerks to the justices, alumni of the Office of the Solicitor General, partners in powerful Washington law firms, and public interest lawyers, all of whom serve as gatekeepers to the Court.In this study, the first to characterize the bar of the Supreme Court as a whole, McGuire uses survey, archival, and interview data to explore the history and social structure of the community of Supreme Court specialists. In so doing, he assesses the strategic politics of Supreme Court practice, the ways in which dominant litigators can shape the Court's decisions, and what the existence of such an elite implies for judicial fairness.