American Politics Today - Essentials (3rd Ed)

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378 CHAPTER 12|THE COURTS


a Protestant and Democrat from Kentucky.^37 It may not seem that the Court is sen-
sitive to public opinion, but these kinds of considerations happen fairly frequently
in important cases. Internal considerations occasionally cause a justice to vote
strategically— that is, diff erent from his or her sincere preference—in order to be in
the majority so the justice can assign the opinion (often to himself or herself ).
After the opinions are assigned, the justices work on writing a draft opinion.
Law clerks typically help with this process. The drafts are circulated to the other
justices for comment and reactions. Some bargaining may occur, in which a jus-
tice says he or she will withdraw support unless a provision is changed. Justices
may join the majority opinion, may write a separate concurring opinion, or may
dissent (see Nuts and Bolts 12.2 for details on the types of opinions).
Two final points about the process of writing and issuing opinions are
important. First, until the 1940s a premium was placed on unanimous deci-
sions. This changed dramatically in the 1940s, when most cases had at least one
dissent. Lately, about two-thirds of cases have a dissent. Second, dissents serve
an important purpose: not only do they allow the minority view to be expressed
but they also often provide the basis for subsequently reversing a poorly rea-
soned case. Moreover, when justices strongly oppose the majority decision, they
may take the unusual step of reading a portion of their dissent from the bench.

Supreme Court Decision Making


There are many diff erent infl uences on judicial decision making. The two main
categories are legal and political. Legal factors include the precedent of earlier cases
and norms that justices must follow the language of the Constitution. Political infl u-

TYPES OF SUPREME COURT DECISIONS


NUTS & bolts


Majority opinion: The core decision of the Court that must be agreed upon by at least fi ve justices. The majority opinion
presents the legal reasoning for the Court’s decision.


Concurring opinion: Written by a justice who agrees with the outcome of the case but not with the legal reasoning.
Concurring opinions may be joined by other justices. A justice may sign on to the majority opinion and write a separate
concurring opinion.


Plurality opinion: Occurs when a majority cannot agree on the legal reasoning in a case. The plurality opinion is the one that
has the most agreement (usually three or four justices). Because of the fractured nature of these opinions, they typically are
not viewed as having as much clout as majority opinions.


Dissent: Submitted by a justice who disagrees with the outcome of the case. Other justices can sign on to a dissent or write their own,
so there can be as many as four dissents. Justices can also sign on to part of a dissent but not the entire opinion.


Per curiam opinion: (Latin for “by the court”) An unsigned opinion of the Court or a decision written by the entire Court.
However, this is not the same as a unanimous decision that is signed by the entire Court. Per curiam opinions are usually very
short opinions on noncontroversial issues, but not always. For example, Bush v. Gore, which decided the outcome of the 2000
presidential election, was a per curiam opinion. Per curiam decisions may also have dissents.


12.2

ANALYZE THE FACTORS
THAT INFLUENCE SUPREME
COURT DECISIONS
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