Exam 3 Study Material

Structure of Opinions

Facts/procedural history

Legal issues and precedent

Response to dissent

Outcome (reverse/affirmed/remanded)

Remanded Opinion

Turns it back to the lower court or back to the original entity

Conference Procedures

They discuss and vote in order of seniority, with the Chief Justice starting. The Chief Justice also assigns the majority opinion. If the Chief is not in the majority, the assignment responsibility goes to the most senior justice

Junior Justice

Newest justice. Responsible for opening and answering the door during conference, as well as keeping track of votes for cert

Circulating Opinions

The author will send copies to other justices in the majority

Memos

Justices use these to negotiate over reasoning of the opinion

Purpose of Opinion Writing

The justices can choose to “join” the opinion

Dissenting Opinions

Can be read from the bench if they feel their thoughts need to be verbally shared

Purpose of Seperate Opinions

To express disagreement with the majority

Special Concurrence

When a just agrees with the result, but not the reasoning

Regular Concurrence

A justice agrees with the results and reasoning. They clarify their interpretation of the majority and try to influence how the decision is applied

Judiciary Act of 1925

Gave the Court prmarily discretionary jurisdiction

Changing of Dissenting Norms

Justices were originally reluctant to issue dissenting opinions, but it is more routine now

Johnson v. United States

Argues if the canine sniff in the case was a violation of the 4th Amendment and Curtilege

United States v. Place (1983)

Search of luggage at an airport where the Canine sniff was considered “sui generis”

Illinois v. Caballes (2005)

Uses a drug dog at a traffic stop

Kyllo v. United States (2001)

Scan of a home from the street using a thermal imager, it exposed the interior of the home which was ruled unconstitutional

Florida v. Jardines (2013)

Drug dog used at the front door of a home, argued against it violating Curtilage

Legal Model

What is taught in law school. Decisions made based on facts, precedent, plain meaning & intent of framers with the Constitution, and a living constitution

Judicial Restraint

Defer to the elected branch, follow precedent even if it is disagreed with

Judicial Activism

Justices are more willing to overturn laws and overrule precedent if they believe they have a reason to do so

Textualism

Plain meaning of the legal language

Original Intent

What were the intentions of the drafters when the law was created

Original Understanding

How the words would have been interpreted when the law was created

Pragmatism

The purpose that the law serves and the consequences of certain interpretations

Attitudinal Model

Judges base their decisions based on their policy preferences. There are also academic influences such as economics, psychology, legal realism, and political science

Strategic Model (Rational Choice)

Judges are not simply motivated by ideology, internal and external environments are taken into account here

Sincere Voting

Voting based on your true preferences

Sophisticated Voting

Not voting on true preferences, but rather to avoid an adverse outcome

Methods of Internal Strategy

Voting Fluidity and Voting on Granting Cert

Voting Fluidity

A justice’s final vote may be different from their conference vote due to negotiations throughout the process

Voting on Granting Cert

A justice may disagree with a lower court ruling, but vote not to grant it as they know it will most likely lose anyway

External Strategy (seperation of powers model)

Justices may consider congressional and presidential preferences if they have the ability to override their ruling

Votes Cast by Justices

Most commonly used measure of judicial ideology. Not the best because other influence can sway a Justice’s vote

Justice Questionaires

The best measure of judicial ideology; measures whether their ideologies change over time

Lower Court Cases decided by Justices

Independent measure of judicial ideology. Runs into issues when the Justice did not previously serve as a judge (i.e. Kagan)

Senate Confirmation hearings

Independent measure of judicial ideology. Nominees are on their best behavior here, but still could be dishonest and could be advised to speak something other of what they believe