Supreme Court's Majority Opinion Research Articles

미국 연방대법원 Dobbs 판결과 그 함의에 대한 소고

The U.S. Supreme Court's Dobbs ruling is a realization of concerns that had already been detailed in Justice Ginsberg's objection to the Gonzales v. Carhart ruling in 2007. Justice Ginsberg criticized the Supreme Court's majority opinion in Gonzales' ruling as eating away the great spirit of the U.S. Supreme Court, which approved the abortion ban, and pointed out the risk of returning to the result of denying the spirit of abortion freedom in the future, 15 years later, this concern became a reality. I would like to ask whether the argument of Roe's ruling, which gave women who had been in the role of sublime pregnancy and childbirth the basic value of freedom of choice or self-determination to resolve discrimination and oppression against women and break away from the framework of unjust control that had to force unwanted situations, was entirely denied. Not only in the United States, but also in Korea, efforts have been made to guarantee women's discrimination and rights for a long time, and those efforts have barely been paying off, and the Supreme Court has changed the precedent unfavorably by breaking the public's expectations, faith, and faith in women's right to choose, which have been maintained for nearly half a century. Nevertheless, we will have to firmly follow the flow of history, but it may be affected to some extent by the Dobbs ruling above. In this regard, this article emphasizes the injustice by critically analyzing the Dobbs ruling and highlighting the problems, and aims to lay the groundwork for the improvement legislation as a follow-up to the constitutional inconsistency decision made by the Constitutional Court of Korea.

The Interest in Permanent Contraception Peaked Following the Leaked Supreme Court Majority Opinion of Roe vs. Wade: A Cross-Sectional Google Trends Analysis

Introduction With the leaked Supreme Court draft regarding Roe vs. Wade, substantial public reactions followed as the horizon of abortion laws within the United States of America have been changing. We sought to compare internet searches for vasectomy and tubal ligation seven days following the leaked draft on May 2, 2022. Methods We used public data provided by Google Trends to investigate the interest and geographic distribution of searches for the two forms of permanent contraception: Vasectomyand tubal ligation. We calculated the mean Search Volume Index (SVI) of these terms. Data analysis was performed with Microsoft Excel Version 16.60 (Redmond, USA), and comparisons between groups were performed using paired t-tests. Results The term 'vasectomy' saw a 121% increase (p=0.0063), and 'tubal ligation' had a 70% (p=0.029) increase compared to the week prior. 49/50states had increased search inquiries for each term. However, the North and Southwestern regions of the U.S. had increased relative surge for vasectomyand the Midwest region for tubal ligationprocedures, respectively.South Dakota and Idaho, with trigger laws that banned abortion immediately following the overturn of Roe vs. Wade, had the greatest surge in SVI for tubal ligation and vasectomy, respectively. Conclusion Our study indicates that with the potential overturn of Roe vs. Wade, there was a significantly increased interest in these two forms of permanent contraception. Future studies should investigate specific concerns and questions patients may have when it comes to the different options of contraception.

Generative Dynamics of Supreme Court Citations: Analysis with a New Statistical Network Model

AbstractThe significance and influence of U.S. Supreme Court majority opinions derive in large part from opinions’ roles as precedents for future opinions. A growing body of literature seeks to understand what drives the use of opinions as precedents through the study of Supreme Court case citation patterns. We raise two limitations of existing work on Supreme Court citations. First, dyadic citations are typically aggregated to the case level before they are analyzed. Second, citations are treated as if they arise independently. We present a methodology for studying citations between Supreme Court opinions at the dyadic level, as a network, that overcomes these limitations. This methodology—the citation exponential random graph model, for which we provide user-friendly software—enables researchers to account for the effects of case characteristics and complex forms of network dependence in citation formation. We then analyze a network that includes all Supreme Court cases decided between 1950 and 2015. We find evidence for dependence processes, including reciprocity, transitivity, and popularity. The dependence effects are as substantively and statistically significant as the effects of exogenous covariates, indicating that models of Supreme Court citations should incorporate both the effects of case characteristics and the structure of past citations.

Ideology and Risk Focus: Conservatism and Opinion‐Writing In the U.S. Supreme Court

Neuroscience proffers evidence that self‐described conservatives have stronger fear responses and aversion to risk than self‐described liberals. Combined with studies showing that judicial ideology drives the content of Supreme Court majority opinions, I argue that conservatism is linked to risk focus in Supreme Court majority opinions. I use the Language Inquiry and Word Count (LIWC) software on a sample of Supreme Court majority opinions, and find that conservative opinions score higher on the LIWC dimension called Risk Focus than liberal opinions. This effect is enhanced in criminal procedural cases. If conservative judges’ perceptions of risk are inflated, and if such perceptions are reflected in the binding opinions that they author, then such opinions’ heightened sense of risk may influence the perceptions of risk of lower‐court judges, which may in turn affect their decision‐making in such important areas as sentencing and convictions. Such a pattern raises important questions for the thousands of lower‐court decisions which impact the basic liberties of American citizens.ObjectiveTo determine whether judicial ideology affects the focus on risk of Supreme Court opinions.MethodsOriginal, random sampling of 1200‐1300 Court opinions; use of LIWC software to analyze risk focus of each opinion; regression analysis of ideology on risk focus.ResultsAs ideology becomes more conservative, the Court's opinions demonstrate increased evidence of focus on risk. This effect is pronounced in criminal procedure cases.ConclusionThe theory is supported. Increasingly conservative Court opinions demonstrate an increased focus on risk.

The Effect of Opinion Readability on the Impact of U.S. Supreme Court Precedents in State High Courts

ObjectiveThis article examines whether more readable U.S. Supreme Court opinions are cited with greater frequency in state courts of last resort.MethodsWe use random slope, random intercept multilevel models to analyze 30 years of state high court citations to U.S. Supreme Court majority opinions issued during the 1987–2006 terms.ResultsOur analysis reveals that opinion readability exerts a strong substantive impact on citation rates. This effect holds while accounting for a variety of factors previously shown to influence citation rates.ConclusionInstitutional constraints, workload considerations, and audience costs should lead state high courts to find clearly written opinions more attractive than jargon‐laden ones. This makes the readability of a U.S. Supreme Court precedent a useful heuristic for state courts when selecting among potential relevant precedents. As these courts play a major role in implementing U.S Supreme Court decisions, our findings indicate that the readability of U.S. Supreme Court opinions has a strong effect on their long‐term impact.

Lexical verb hedging in legal discourse: The case of law journal articles and Supreme Court majority and dissenting opinions

Hedging can play a particularly important role in nuancing language in such language-dependent disciplines as law. This article presents a corpus-based study of the use of epistemic lexical verbs as hedging devices in three written legal genres: The law journal article, the Supreme Court majority opinion and the Supreme Court dissenting opinion. These genres were chosen due to the role they potentially play in international higher education law studies, with the corpus deriving from the legal jurisdiction of the United States. Realization, frequency and function of speculative, quotative, sensorial and deductive lexical verb hedges are compared. Results indicate that patterns of use of epistemic lexical verb hedges can be identified for each genre and can be linked to differing communicative purposes. The article concludes that better understanding of hedging use in different genres can enhance hedging competence, especially hedging interpretation skills.

More Than Mileage: The Preconditions of Travel and the Real Burdens of H.B. 2

During the winter break of my second year in law school, I drove from my childhood home in Fort Worth, Texas to New Orleans, Louisiana to watch oral arguments at the Fifth Circuit in the case Planned Parenthood v. Abbott} That case was the first legal challenge to the constitutionality of Texas House Bill 2 (H.B. 2), (2) the omnibus anti-abortion bill enacted by the Texas legislature in 2013. In total, I drove 541 miles door-to-door, spending about eight hours on the road each way. That distance is slightly less than what a woman living in El Paso would have to travel to get an abortion in Texas if H.B. 2 had been fully implemented. Because of the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, (3) the second attempt to strike down the law, that potential outcome will hopefully remain a hypothetical. Whole Woman's Health challenged two provisions of H.B. 2, (4) which is aimed at shuttering clinics that provide abortions, as Texas politicians have more or less admitted. (5) The first provision under review required abortion providers to have admitting privileges at a hospital within thirty miles of the clinic where they provide services. (6) The second required abortion clinics to meet the standards of an ambulatory surgical center (7) : outpatient medical facilities equipped for invasive surgeries. Mainstream medical experts unanimously agree that these requirements, and others like them, are not only onerous and expensive, but also arbitrary and unnecessary. (8) The provisions did nothing to ensure women's health and safety. In fact, data shows that H.B. 2 harms women's well-being. (9) That harm is largely the result of the law, especially the two provisions in question, forcing clinics to close, thereby making abortion services inaccessible to Texas residents in need of care. In reversing the Fifth Circuit and striking down the admitting privileges and ambulatory surgical center provisions in H.B. 2, the Supreme Court's majority opinion recognized the extensive harm caused by TRAP (Targeted Regulation of Abortion Providers) laws. (10) And, more than recognize the harms, the justices in the majority declared an evaluation of the harm done by such regulations a necessary part of Constitutional analysis. But as bold as Justice Breyer's opinion was in Whole Woman's Health, it is only forward-looking, preventing future harm. It cannot and does not undo the damage already inflicted upon the women of Texas, nor does it solve the access problem caused by H.B. 2; there are not enough clinics in Texas. Even just partial implementation of H.B. 2 caused a significant reduction in the number of abortion clinics in the state. Prior to the law's enactment, Texas had roughly forty-one clinics. (11) Approximately nineteen remain--meaning that in just three years, over half the clinics providing abortion closed. (12) Had the law gone into full effect, the number would have been reduced to ten or fewer, with all the remaining clinics clustered in the state's major metropolitan areas of Fort Worth, Dallas, Houston, Austin, and San Antonio. (13) Today only one clinic remains in McAllen, Texas. (14) By reversing the lower court's ruling and declaring these two provisions of H.B. 2 unconstitutional, the Supreme Court's decision enables the McAllen clinic to operate at full capacity rather than the reduced schedule forced upon it by the Fifth Circuit's earlier decision. (15) But it will take time--months or, more likely, years--to return capacity in the Rio Grande Valley and elsewhere in the state to pre-2013 levels. Thus, the weight of the burdens imposed by H.B. 2 continues to bear down on Texas residents and to fall most heavily upon those most immediately and abundantly hurt by the law: Latina immigrants and their families, especially those living in rural communities. These harms, and the clinic shortage causing them, are the legacies of H.B. 2 and of a toothless undue burden standard that guided abortion jurisprudence for far too long. …

Judicial Retirements and the Staying Power of U.S. Supreme Court Decisions

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique data set of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the justices who supported a decision retire from the Court. Importantly, this effect exists over and above the impact of retirements on the ideological makeup of the Supreme Court.

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.

The Genealogy of Law

Many theories of judicial politics have at their core the concepts of legal significance, doctrinal development and evolution, and the dynamics of precedent. Despite rigorous theoretical conceptualization, these concepts remain empirically elusive. We propose the use of a genealogical model (or “family tree”) to describe the Court's construction of precedent over time. We describe statistical assumptions that allow us to estimate this kind of structure using an original data set of citation counts between Supreme Court majority opinions. The genealogical model of doctrinal development provides a parsimonious description of the dependencies between opinions, while generating measures of legal significance and other related quantities. We employ these measures to evaluate the robustness of a recent finding concerning the relationship between ideological homogeneity within majority coalitions and the legal impact of Court decisions.

How the Power to Regulate Commerce Among the Several States Became the Interstate Commerce Power: A Content Analysis of Supreme Court Opinions

The term interstate was invented in the 1840's and first used in a Supreme Court majority opinion in 1869. Since then it has largely displaced usage of the original language of the constitution, i.e., the regulation of the several This paper presents data showing the rise of 'interstate since 1869 over the language of the constitution, along with related data concerning use of the phrase between the several The paper argues that the dominant usage of interstate has not been neutral, but has accompanied and reinforced a narrower view of the power to regulate commerce the several as limited to activities crossing state boundaries, and has resulted in the Court adopting additional doctrines to allow it to regulate activity inside states. In addition to the data on usage by the Court, the paper also surveys early Court interpretation of among the several states in Gibbons v. Ogden, explores the origins of the term interstate commerce, surveys academic literature relating to the reasons for the use of the term and its implications, and reviews recent use of the term interstate by the Court, especially in the Lopez decision.

How 'Commerce Among the Several States' Became 'Interstate Commerce:' A Content Analysis of Supreme Court Opinions

This paper tabulates the number of Supreme Court majority opinions which use either the phrase the several states (or close variants), which is the actual language of the Constitution, or the phrase interstate commerce. We find using LEXIS searches that the latter term was first introduced into an opinion in 1869, but within about 20 years it far overshadowed the actual language of the Constitution and has been used ever since in considerably more opinions than the actual language. The greatest dominance by interstate commerce came in the 1930's, when it was used in nearly 15 times more opinions than the several states, but even in recent decades the former term dominates the latter by at least three times. The significance of the rise of interstate commerce is more difficult to determine, but we think from ample evidence that it corresponds to and reinforces a sense that the several states has a relatively narrow meaning, that of something crossing a state border. In contrast, arguments could be made that among has a broader meaning, which is to go inside states. However, the dominance of interstate commerce, not just in the Court's own language, but in legal discourse generally, as well as in political science and even the public generally, not only reflects the Court's own doctrine, at least from earlier periods, but also makes it more difficult to make the argument for the broader meaning of because of the pervasiveness of the acceptance that interstate commerce is the meaning of the Constitution.

Strategy and Constraints on Supreme Court Opinion Assignment

The assignment of the Supreme Court's majority opinions is one of the principal prerogatives enjoyed by the chief justice. A strategic chief justice is able to influence the course of legal policy through agenda-setting; that is, the chief justice exercises influence over policy by choosing the justice who will author an opinion and, thereby, determining which policy alternative will be developed in a majority opinion draft. Through strategic opinion assignment, then, the chief is able to guide the Court to an outcome that is closest to his preference or that will result in the least policy loss. Despite the importance of this prerogative for agenda-setting and the development of the law, the chief justice operates within constraints: the need for majority support for the proposed opinion and the efficient operation of the Court. In particular, the chief justice often assigns opinions to justices with whom he allies in order to maintain fragile conference majorities. Chief Justice Rehnquist also asserted that his assignments were based on the need to complete work on the cases and to maintain an equitable distribution of cases across the justices. Using data drawn from the papers of Justice Harry A. Blackmun, I test these expectations through an examination of opinion assignment during the Rehnquist Court (1986-1993 OT).

The double life of double effect.

The U.S. Supreme Court's majority opinion in Vacco v. Quill assumes that the principle of double effect explains the permissibility of hastening death in the context of ordinary palliative care and in extraordinary cases in which painkilling drugs have failed to relieve especially intractable suffering and terminal sedation has been adopted as a last resort. The traditional doctrine of double effect, understood as providing a prohibition on instrumental harming as opposed to incidental harming or harming as a side effect, must be distinguished from other ways in which the claim that a result is not intended might be offered as part of a justification for it. Although double effect might appropriately be invoked as a constraint on ordinary palliative care, it is not clear that it can be coherently extended to justify such practices as terminal sedation. A better approach would reconsider double effect's traditional prohibition on hastening death as a means to relieve suffering in the context of acute palliative care.

The Unbearable Rightness of Bush v. Gore

Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

War and Its Surrogates: Male Combat Sports and Women's Roles

War and the military life have traditionally been perceived in most cultures as a sacrosanct ex-periental world devoted to masculine maturation and bonding. By definition both these traditionally male organizations have until now excluded women, treating them as objects to be despised (if not feared), and also the target of active opposition. Note, for instance, the gleeful celebrations among cadets when Shannon L. Faulkner, the first woman admitted (after court order) to The Citadel, a single-sex military college in Charleston, SC, decided after one week in August 1995 that she could not survive the harassment, hi refusing to admit her the institution had claimed that her presence ‘would undermine a proud and legitimate tradition dedicated to molding the minds, bodies and spirits of young men’. The counter argument was that she was being denied equal opportunity to take part in ‘a unique academic environment that requires on-campus residence and that is being built around a system of hardship, competition and bonding, […and] also a lifetime of countless, less tangible benefits’. Such was also the basis of the US Supreme Court's majority opinion written by Ruth Bader Ginsberg (1996) mandating the admission of women to the Virginia Military Institute. Though now federal government supported service academies admit women, nostalgia still exists in certain quarters for the days when the comment, ‘If the army had wanted you to have a wife, they would have issued you one’ summed up the distinctly peripheral position held by wives, who were, and are still, classified as ‘dependants’. But now women are in the United States Armed Forces, in command positions and certain combat units, as well as in the medical corps. The transition is difficult.

Roe v. Wade: the rhetoric of fetal life.

Court decisions themselves, and not just arguments before courts, are rhetorical works. The Supreme Court majority opinion in the publicized 1973 abortion case Roe v. Wade demonstrated this rhetorical nature of decisions both in its choice of arguments and evidence and in its effort to organize symbolically the world of the medical and legal considerations surrounding abortion.

The New Look in Military Justice

A recent spate of widely publicized trials by court-martial has focused national attention on military justice. Some observers have concluded that it is still no more than "drumhead justice"'and that "military justice is to justice as military music is to music."2 A similar appraisal underlies the Supreme Court's majority opinion in the landmark case of O'Callahan v. Parker, 3 where Mr. Justice Douglas alludes to "so-called military justice," 4 "the travesties of justice perpetrated" under the Uniform Code of Military Justice,5 and the circumstance that "courts-martial as an institution are singularly inept in dealing with the subtleties of constitutional law."6