Chapter 15 Justices and Their Decisions

1. Chapter 15 Justices and Their Decisions Secret in deliberation (behind closed doors, few interviews with press), open in decision-making (detailed published opinions) • Judicial Selection • The most important appointment of President. An enduring mark. • Irregular; depends on vacancy (death, resignation, impeachment). Table 15-1current membership • Nomination Process: President nominates, Senate confirms, justice serves during good behavior (none have been removed). Have become contentious and dramatic. Criteria: • Merit – for lower court, merit takes back seat to political rewards and senatorial courtesy. At SC, merit is first concern (professional eminence and without ethical blemish). Most served as high judges. Rehnquist had never been a judge.

2. Personal/Political Friendship: 50% have been personal friends. 90% from President’s party. Recently, however, personal friendship has been less a factor • Policy Preferences – President’s try to select ideological favorites (Reagan and Scalia; Clinton and Breyer). Commonly disappointed (Eisenhower and Warren; Kennedy and White). • Symbolic Representation (ranked) • Race/Ethnicity • Gender • Geography • Religion

3. Senate Confirmation – president’s must act strategically to get nominees through. • Nominees are sent to Senate Judiciary Committee for questioning. • Committee recommends to floor. • Most nominations are successful. • Last 6 rejections due to ethical/ideological concerns (Bork and Ginsburg). • Decision-Making Process • Briefing – lawyers and amici (center more on SC precedent and less on facts • Oral Arguments • Each side gets 30 minutes (interrupted often) • Often strategic (use lawyers as mediums of communication between justices). Example: Anti-sodomy laws (Lawrence vs. Texas) • Conference – 2-3 days later, justices assemble in conference. Chief reviews case and gives his opinion first. Others present views by seniority. • Opinion Assignment – Chief assigns if in majority;

4. If not, most senior member assigns. Four factors in opinion assignment: • Workload – equal # of assignments • Ideology – must satisfy views of peers usually (perhaps justice closest to dissenters). • Specialization – legal areas of expertise (In Roe, Burger selected Blackmun, a medical law expert). • Self-Assignment – Tradition of Chief assigning himself big cases. • Opinion Writing • Burden of law clerks usually. Submit drafts to justice, who revises and edits. • Very dynamic process of letter/opinion sending between justices. Change mind sometimes (less than 10% of time) • Announcement of Opinion – • Decision and rationale • Types:

5. Majority: 5 or more agree with decision and rationale • Plurality: no single opinion is joined by 5 or more; the most • Concurring: agree with decision, but not rationale of majority • Dissent: disagree with both • Justice’s Policy Preferences • Bloc Analysis – trends of justices voting together (ideological blocs). Table 15-3. Who are the least predictable?

6. Scaling – method of analyzing ideological divisions on the court. • Stronger the support, higher on the scale. • Cutoff point – point at which the support is so low that the judge votes in opposite direction. • Procedure – arrange cases according to voting divisions (1-8 to 8-1). Strong voting patterns and underlying ideological attitudes are statistically discerned. (e.g., study in 70s found that 85% of Court’s decisions were explained by 3 values – freedom, equality, and New Dealism). • Content Analysis – direct means of measuring ideology on the court (look directly at the content of their speeches, opinions, votes, writings before coming to court).

7. Supreme Courts • Warren (1953-1969) – most liberal. Support for minority rights, criminal rights, free speech/expression, separation of C & S. • Burger (1969-1986) – moderate (support for civil liberties dropped 80%) and especially different in criminal cases. A bit more accommodationist in religion cases. Dealt with new issues on gender (Roe). Never reversed Warren decisions, but moderated them (e.g. Affirmative-Action & quotas) • Rehnquist (1986-2005) – More conservative (product of moderate to conservative replacements – Scalia, Kennedy, Thomas). Promotes state’s rights, even more accommodationist on religion, far less supportive of criminal rights and affirmative-action. Currently, a conservative weak alliance; success of which is determined mostly by O’Conner. • Roberts (2005-present) – O’Conner & Rehnquist replaced by Roberts and Alito. More conservative? • Impact and Implementation

8. Reactions and Responses – implementation of decisions is not always immediate (compare Roe to Brown). • Political Institutions – In statutory cases, Congress may respond by revising its laws or simply passing new laws to reverse the decision. Far more difficult for Constitutional cases. Here, they may use amendments, deny raises (1964), refuse to appropriate necessary funds. • Interpreters of law – lawyers and judges take decisions and implement them in subsequent legal actions. Some may defy, avoid, or limit (apply narrowly) the decision. • Consumers of law – affect groups, agencies, etc. vary in their implementation of decisions (school prayer). Groups respond to decisions by forming, lobbying, suing, etc.

9. Political, Social, Economic forces – public opinion clearly affects the degree of implementation. The court is considered the most “legitimate” institution in U.S. Govt. Makes unpopular decisions more tolerable. But opinion still has an impact, how? • Voters choose Presidents who appoint • Court responds direction to public mood.