By U. Sommer

A lot learn is dedicated to the decision-making energy and precedent set via the excellent court docket. much less awareness, even if, is given to the strategic habit in the course of case choice. This publication argues that case choice is finished strategically, and through quite a few standards - influencing its constitutional place and value.

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When voting on Cert, justices may use their gut feeling, in addition to some well-calculated assessments to act strategically. 13 Strategic behavior on the part of justices happens when they look down the decision tree, and plan their actions accordingly so as to maximize utility. 14 Rational players are strategically rational (Epstein and Knight, 1998). , grant or deny Cert), rational players will anticipate probable solutions to the future cooperation and coordination problems facing the dispositional and doctrinal majorities respectively.

It is this majority support that lends the opinion the legitimacy of a controlling doctrine that applies to lower courts as well as in many cases to other arms of government. The sway of a Supreme Court ruling is far reaching; the legitimacy of the decision being binding on all parties involved (or related) stems partly from the support of the majority of the justices. Thus, the ability to garner the support of the majority of justices for an opinion delivered for the Court is critical. The majority of justices joining hands in support of an opinion are defined here as the doctrinal majority.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. ” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. In the case of the Lamb’s Chapel ruling, the scathing special concurring opinion registered by associate justice Scalia was insufficient to undermine the authority of the opinion of the Court; since six justices supported his opinion, Justice White had a Court.

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