Will of the Minority: Rule of Four on the United States Supreme Court (original) (raw)
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The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements
SSRN Electronic Journal, 2000
In this Paper, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case-a situation I refer to as a "minority majority." In analyzing the question of treatment of minority majorities, the Paper makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a Court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Paper's second broad contribution is its normative analysis of the precedent question. The Paper identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categoriesthat is, quorum and action requirements in order to minimize possible minority majority cases. Second, one might address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them "full" precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. The Paper argues that affording narrow and limited precedential effect may be desirable, and that affording no precedential effect on the court that issued the decision is an underexamined option. The third contribution that the Paper makes is to use the discussion of the normative question to shed light on broader issues. These include the legitimacy of courts, the relationship between legitimacy and stare decisis; the proper breadth of court opinions and holdings; and questions of institutional choice as to who should decide how these questions are resolved; and the importance of judicial minimalism.
BALLER, Oesten (Ed). Violent Conflicts, Crisis, State of Emergency, Peacebuilding. , 2019
The main democratic critiques of strong judicial review tend to disregard constitutional amendments as a mechanism to mitigate judicial supremacy. F e main reason for this lies in the requirements of supermajority rules to amend a constitution. Supermajority rules do not o1 er equal treatment to those who will take part in the decision-making process, as this rule favors the maintenance of the status quo by making changes more diq cult. Underlying this assertion is the belief that in democracy political equality depends on a decision-making process in which all opinions have the same value, mainly through simple majority. Moreover, the distrust of constitutional amendments as an instrument of dialogue is justied by the existence of judicial review on constitutional amendments. However, both constitutional courts and constitutional amendments are part of the majority of the democratic societies, therefore, we demonstrate how judicial review can be compatible with the democratic potential of constitutional amendments. F is is done through the use of supermajority rules in the constitutional courts deliberation, because, unlike what happens in parliaments, the maintenance of the status quo that it represents is advantageous for the presumption of constitutionality of constitutional amendments and does not mean violation of equal treatment since the democratic status of the courts does not come from the representativeness of their members.
The Majority That Wasn'T: Stare Decisis, Marjority Rule and the Mischief of Quorum Requirements
In this Paper, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case-a situation I refer to as a "minority majority." In analyzing the question of treatment of minority majorities, the Paper makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a Court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Paper's second broad contribution is its normative analysis of the precedent question. The Paper identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categoriesthat is, quorum and action requirements in order to minimize possible minority majority cases. Second, one might address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them "full" precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. The Paper argues that affording narrow and limited precedential effect may be desirable, and that affording no precedential effect on the court that issued the decision is an underexamined option. The third contribution that the Paper makes is to use the discussion of the normative question to shed light on broader issues. These include the legitimacy of courts, the relationship between legitimacy and stare decisis; the proper breadth of court opinions and holdings; and questions of institutional choice as to who should decide how these questions are resolved; and the importance of judicial minimalism.
Passing and Strategic Voting on the U.S. Supreme Court
Law <html_ent glyph="@amp;" ascii="&"/> Society Review, 2005
Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated votingFcertainty about the views held by other justices and the agendaFis lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes. Inr ecent years, studies of law and courts have emphasized that judges are strategic decision makers. A strategic judge is one who understands that law on the books must be translated into law in action. Put another way, strategic judges acknowledge that they cannot act independently as they attempt to establish legal policy.
Theorizing the U.S. Supreme Court
Oxford University Press eBooks, 2017
We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member ("collegial") court employing the Supreme Court's very distinctive and highly unusual voting rule. The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court's voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.
A rational choice theory of the Supreme Court
1989
This paper models the Supreme Court as a self interested party in a bargaining game between the Supreme Court, the two houses of Congress and the President. We analyze the political incentives for the Supreme Court to intervene in the legislative process. We show that the Court will usually intervene following important personnel changes in the composition of Congress and/or the executive. We also show that the Supreme Court does not necessarily increase the stability of political outcomes. Depending on the nature of the political changes, the Supreme Court may delay or accelerate the adoption of new policies. Finally, this model suggests that the Supreme Court constrains more the President than Congress. We would like to thank John Ferejohn, Tom Romer, Stephen Ross, Barry Weingast, and participants at the Hoover Seminar on Collective Choice for helpful comments and suggestions. Fellowship support from the Institute for Government and Public Affairs at the University of Illinois, through the Ameritech Research Fellowship Program, to Spiller is gratefully acknowledged. 5 The empirical importance of considering both types of issues (i.e. statutory and constitutional) is shown in Casper (1976), where Dahl's (1974) conclusions are reversed simply by considering both types of cases. result from the institutional structure of government. Consider, for example, legislative enactment. Congress, with or without the consent of the executive, can react to Court decisions it dislikes by taking several actions. 6 Congress could directly reverse the Court's interpretation of a statute by enacting legislation to that regard. 7 A constitutional amendment, 8 or a change in the Court's jurisdiction 9 or composition 10 are other alternative ways for Congress to influence the Court. More indirectly, Congress could "punish" the Court by limiting budgetary support for the judiciary. 11 Similarly, Congressional jurisdictional rules, the committee system, bicameralism, the President's veto power, are all important institutional features that will impact on the nature and extent of the constraints faced by the Court. 12 The model of the Supreme Court that we introduce below is very simple. We abstract from most of the rich institutional and personal issues that have 6 10 See Lawlor (1986), and Caldeira (1987) for discussions of bills introduced in Congress to change the Court's composition. 11 Schmidhauser and Berg (1972, pp. 8-18) discuss the significance of Congress' budgetary responses to Supreme Court decisions. See also Wasby (1988, p. 300). 12 Although some of these institutional arrangements have been studied within the congressional context (Shepsle and Weingast (1982), Weingast and Moran (1983)), few attempts have been made to analyze their effects on Supreme Court decisions.
The Role of the Legal Status Quo in Supreme Court Decision Making
annual meeting of the American …, 2009
In previous work, we proposed and tested a formal model of decision-making by the United States Supreme Court. A key assumption of this model was that for every legal case there exists a "current legal status quo" which is a key point of reference for the justices as they make decisions in each of the stages of the Court's decision-making process. For example, regarding the final two stages involving opinionwriting and coalition formation and then the final vote, it was assumed that each justice evaluates a draft majority opinion in terms of whether it is an improvement over the current legal status quo: if the draft opinion is at least as good as the current legal status quo for the justice, the justice will support the opinion; if the draft opinion is worse than the current legal status quo for the justice, the justice will not support the opinion. However, this assumption about the role of the current legal status quo has turned out to be controversial: some students of judicial politics consider the assumption to be unwarranted or unrelated to what justices actually think about during the Court's decision-making process. This paper builds on our previous work to further advance our argument that the legal status quo is a critical aspect of Supreme Court decision-making.