Judicial Review and the Current Court

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Judicial Review and the Current Court

• GOVT 2305

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In this section we look at the development of the
judiciary (mostly the national judiciary). This
includes a discussion of how the judiciary was
able to obtain the power of Judicial Review, how
the courts have evolved, and the current
composition of the Supreme Court.
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Appropriate ReadingsFederalist 78
(wikipedia)Marbury v. Madison (wikipedia)Creatin
g the Federal Judicial SystemJudicial Review
(wikipedia)
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We will begin with an overview of Federalist 78,
Written by Hamilton, which presents the argument
which became the basis of judicial review.
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Alexander Hamilton
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There is nothing in the Constitution explicitly
authorizing the power of judicial review. During
the Constitutional Convention it was proposed
that a Council of Revision be established to
determine whether legislation was in keeping with
the Constitution.
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But it was determined that the Council of
Revision would likely become tyrannical. Nothing
could check it. The issue was unresolved.
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Nevertheless, the Supremacy Clause implied that a
power must exist in order to enforce the
Constitution as being the supreme Law of the
Land.
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Hamilton details that argument in Fed 78. Heres
a summary of the argument.
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He begins by emphasizing the weakness of the
Judiciary
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Whoever attentively considers the different
departments of power must perceive, that, in a
Government in which they are separated from each
other, the Judiciary, from the nature of its
functions, will always be the least dangerous to
the political rights of the Constitution because
it will be least in a capacity to annoy or injure
them. The Executive not only dispenses the
honors, but holds the sword of the community. The
Legislature not only commands the purse, but
prescribes the rules by which the duties and
rights of every citizen are to be regulated.
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The Judiciary, on the contrary, has no influence
over either the sword or the purse no direction
either of the strength or of the wealth of the
society and can take no active resolution
whatever. It may truly be said to have neither
force nor will, but merely judgment and must
ultimately depend upon the aid of the Executive
arm even for the efficacy of its judgments.
13
Notice his use of the terms will and
judgment. Is there a clear distinction
between the two? Judgment seems to have a more
narrow meaning than will. To judge means that one
determines whether a decision exists within the
parameters of Constitutional law, not so with
will.
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This simple view of the matter suggests several
important consequences. It proves incontestably,
that the Judiciary is beyond comparison the
weakest of the three departments of power that
it can never attack with success either of the
other two and that all possible care is
requisite to enable it to defend itself against
their attacks. It equally proves, that though
individual oppression may now and then proceed
from the courts of justice, the general liberty
of the People can never be endangered from that
quarter I mean so long as the Judiciary remains
truly distinct from both the Legislature and the
Executive
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He then discusses how an independent judiciary is
necessary in a limited Constitution and how a
power needs to exist to declare laws contrary to
the Constitution void.
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The complete independence of the Courts of
justice is peculiarly essential in a limited
Constitution. By a limited Constitution, I
understand one which contains certain specified
exceptions to the Legislative authority such,
for instance, as that it shall pass no bills of
attainder, no ex post facto laws, and the like.
Limitations of this kind can be preserved in
practice no other way than through the medium of
the Courts of justice whose duty it must be to
declare all Acts contrary to the manifest tenor
of the Constitution void. Without this, all the
reservations of particular rights or privileges
would amount to nothing.
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He states that this will not make the Judiciary
superior to the other branches. It only means
that the Constitution is superior to statutory
law.
18
Some perplexity respecting the rights of the
Courts to pronounce Legislative acts void,
because contrary to the Constitution, has arisen
from an imagination that the doctrine would imply
a superiority of the Judiciary to the Legislative
power. It is urged that the authority which can
declare the acts of another void, must
necessarily be superior to the one whose acts may
be declared void. As this doctrine is of great
importance in all the American Constitutions, a
brief discussion of the ground on which it rests
cannot be unacceptable.
19
There is no position which depends on clearer
principles, than that every act of a delegated
authority, contrary to the tenor of the
commission under which it is exercised, is void.
No Legislative act, therefore, contrary to the
Constitution, can be valid. To deny this, would
be to affirm, that the deputy is greater than his
principal that the servant is above his master
that the Representatives of the People are
superior to the People themselves that men
acting by virtue of powers, may do not only what
their powers do not authorize, but what they
forbid.
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The judiciary must keep the legislature in check
and have the power to interpret the laws. The
judiciary is also responsible for the
interpretation of the laws and the Constitution.
This is not stated in the Constitution.
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If it be said that the Legislative body are
themselves the constitutional judges of their own
powers, and that the construction they put upon
them is conclusive upon the other departments, it
may be answered, that this cannot be the natural
presumption, where it is not to be collected from
any particular provisions in the Constitution. It
is not otherwise to be supposed, that the
Constitution could intend to enable the
Representatives of the People to substitute their
will to that of their constituents. It is far
more rational to suppose, that the Courts were
designed to be an intermediate body between the
People and the Legislature, in order, among other
things, to keep the latter within the limits
assigned to their authority.
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The interpretation of the laws is the proper and
peculiar province of the Courts. A Constitution
is, in fact, and must be regarded by the Judges,
as a fundamental law. It therefore belongs to
them to ascertain its meaning, as well as the
meaning of any particular Act proceeding from the
Legislative body. If there should happen to be an
irreconcilable variance between the two, that
which has the superior obligation and validity
ought, of course, to be preferred or in other
words, the Constitution ought to be preferred to
the statute, the intention of the People to the
intention of their agents.
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He states that constitutional law must trump
statutory law because the Constitution because
it went through a ratification process is a
closer reflection of the will of the people than
is statutory law.
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Nor does this conclusion by any means suppose a
superiority of the Judicial to the Legislative
power. It only supposes that the power of the
People is superior to both and that where the
will of the Legislature, declared in its
statutes, stands in opposition to that of the
People, declared in the Constitution, the Judges
ought to be governed by the latter rather than
the former. They ought to regulate their
decisions by the fundamental laws, rather than by
those which are not fundamental.
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. . . the prior act of a superior ought to be
preferred to the subsequent act of an inferior
and subordinate authority and that accordingly,
whenever a particular statute contravenes the
Constitution, it will be the duty of the Judicial
tribunals to adhere to the latter and disregard
the former.
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Again, in interpreting the Constitution, judges
and justices must exercise judgment, not will
in interpreting the law.
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It can be of no weight to say that the Courts,
on the pretence of a repugnancy, may substitute
their own pleasure to the constitutional
intentions of the Legislature. This might as well
happen in the case of two contradictory statutes
or it might as well happen in every adjudication
upon any single statute. The Courts must declare
the sense of the law and if they should be
disposed to exercise will instead of judgment,
the consequence would equally be the substitution
of their pleasure to that of the Legislative
body. The observation, if it proved anything,
would prove that there ought to be no Judges
distinct from that body.
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The judiciary can only perform this function if
it has sufficient power, and the best way to
guarantee this power is to grant it lifetime
ternure.
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If then the Courts of justice are to be
considered as the bulwarks of a limited
Constitution, against Legislative encroachments,
this consideration will afford a strong argument
for the permanent tenure of Judicial offices,
since nothing will contribute so much as this to
that independent spirit in the Judges, which must
be essential to the faithful performance of so
arduous a duty.
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This independence of the Judges is equally
requisite to guard the Constitution and the
rights of individuals, from the effects of those
ill humors, which the arts of designing men, or
the influence of particular conjunctures,
sometimes disseminate among the People
themselves, and which, though they speedily give
place to better information, and more deliberate
reflection, have a tendency, in the mean time, to
occasion dangerous innovations in the Government,
and serious oppressions of the minor party in the
community.
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Notice that he reiterates the importance of an
independent judiciary, and the need of the
judiciary to maintain the form and spirit of the
Constitution.
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In brief, Hamilton argues that a power of
judicial review is necessary, that the judiciary
ought to have that power, and he suggests limits
on how the power ought to be exercised.
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Now the question is, how is the power to be
claimed by the court? That is why Marbury v.
Madison is such an important case.
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We now turn to, first, the court case Marbury v
Madison (1803) and, second, the debate over how
the constitution ought to be interpreted.(Findla
w)
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The story actually begins with the passage of The
Judiciary Act of 1789 which not only created the
first court system (more on that below) but also
gave the Supreme Court a new power The ability
to hear cases requesting the grants of Writs of
Mandamus.
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Heres relevant section in the lawSEC. 13 The
Supreme Court . . . shall have power to issue . .
. writs of mandamus, in cases warranted by the
principles and usages of law, to any courts
appointed, or persons holding office, under the
authority of the United States.
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Definition of A Writ of Mandamus A writ or
order that is issued from a court of superior
jurisdiction that commands an inferior tribunal,
corporation, Municipal Corporation, or individual
to perform, or refrain from performing, a
particular act, the performance or omission of
which is required by law as an obligation.
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Jump forward a decade or so to the defeat (he
came in third) of John Adams in the election of
1800. After his defeat, the Federalists in
Congress passed the Judiciary Act of 1801 which
reorganized the court system and created new
circuit court positions.
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Adams would staff many of these positions prior
to Jeffersons inaugural. These became known as
the midnight appointments since some were done on
his last day in office. Since many of these
people were judges, they were also referred to as
the midnight judges.
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These appointments were meant to limit what
Jefferson could accomplish in office. Jefferson
disapproved. He knew that this was a way for the
Federalist to continue their influence. If they
controlled the courts they controlled the law.
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the Federalists "retired into the judiciary as a
stronghold- Thomas Jefferson
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(No Transcript)
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This reminds us of the consequence of life time
tenure in the judiciary. It provides a check on
the short term preferences of the political
branches.
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The most important of the midnight appointments
was John Marshall, the Fourth Chief Justice of
the Supreme Court. His key goal was to increase
the power and prestige of the court.
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John Marshall
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Prior to his appointment, the court went through
3 chief justices in twelve years. There was
little glamour or power in the position.
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"My gift of John Marshall to the people of the
United States was the proudest act of my life."
John Adams, President
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Marshall is often argued to have been the
greatest justice in court history due to his
ability to increase the power and prestige of the
court. Attaining judicial review was a critical
step. William Marburys lawsuit gave him the
opportunity.
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William Marburys commission to be Justice of the
Peace was not delivered back to Marbury before
Adams left office. James Madison (as secretary of
state) would not deliver the commission, so
Marbury sued to have it delivered and he could
occupy the position.
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It was signed and sealed, but not delivered.
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He took his suit to the Supreme Court based on
the power granted to it in the Judiciary Act of
1789 (text). The court could now hear requests
for Writs of Mandamus, Marbury requested that one
be issued to Jefferson.
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But heres the political background Jefferson
let it be known that he would not deliver the
commission no matter what the courts decided.
Which put Marshal in a bind.
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By either issuing or not issuing the writ, the
courts weakness would be obvious.As a
Federalist, Marshall was interested in expanding,
not contracting, the power of government.
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Marshall could not force Jefferson to deliver the
commission if he ruled for Marbury. But if he
ruled against Marbury, it would seem that the
court had been intimidated by Jefferson.
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The best option was to declare the writ of
mandamus unconstitutional. That is to claim the
power of judicial review.
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This way the court did not have to rule on the
writ of mandamus. They declared that there was no
power to issue writs, so the point was moot.
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The power of judicial review was a far more
significant power than the writ of mandamus.
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This was the decision given in the case of
Marbury v. Madison.
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1 - Did Marbury have a right to the commission?
Yes2 - Do the laws of the country give Marbury
a legal remedy? Yes 3 - Is asking the Supreme
Court for a writ of mandamus the correct legal
remedy? No
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The third clause claims that the writ violates
the constitution the fundamental law.
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Section Two Clause TwoIn all Cases affecting
Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction.
In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall
make.
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The Judiciary Act of 1789 allowed the Supreme
Court to act as a court of original jurisdiction
in issuing writs. This power is not contained in
the Constitution.
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The authority, therefore, given to the supreme
court, by the act establishing the judicial
courts of the United States, to issue writs of
mandamus to public officers, appears not to be
warranted by the constitution
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This established the precedent for judicial
review of congressional law. State laws had
already been overturned, and the courts had
claimed that such a right existed, but not it was
finally used.
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In order to prevent backlash, the power of
judicial review was used only occasionally early
on. After Marbury, the court did not overturn a
congressional law until the Dred Scott decision,
which overturned the Missouri Compromise of 1820.
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And led to the Civil War.
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For a history of the use of Judicial Review by
the Courts click her The United States
Supreme. Court and judicial review of Congress,
1803-2001
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Judicial Review creates two major issues for the
court.
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1. How should the court interpret the
Constitution?2. How aggressively should the
court use the power of judicial review?
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Two general ways to interpreting the
Constitution1 - Strictly 2 - Loosely(see
Theories of Constitutional Interpretation)
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Strict (or Narrow) ConstructionThe
interpretation of the Constitution is limited.
Jefferson and the Democrat Republicans favored
a strict construction of the Constitution.
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And there a couple ways at least -- to Strictly
or Narrowly interpret constitutional language
Original IntentTextualism
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Original intent maintains that in interpreting a
text, a court should determine what the authors
of the text were trying to achieve, and to give
effect to what they intended the statute to
accomplish, the actual text of the legislation
notwithstanding
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This assumes a common meaning existed at the time
of the founding and that this meaning can be
determined.
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Textualism is a formalist theory of statutory
interpretation, holding that a statute's ordinary
meaning should govern its interpretation, as
opposed to inquiries into non-textual sources
such as the intention of the legislature in
passing the law.
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Both see a fixed meaning to the Constitution.
Interpretations of the Constitution should be
bound by that meaning.
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Loose (or Broad) ConstructionThe Constitution
does not have a fixed meaning, rather, it can be
broadly interpreted to be adjusted to fit the
contemporary needs of society.
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Proponents argues that a dynamically changing
society needs a Constitution that can adjust to
changing needs.
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Two relevant termsThe Living ConstitutionThe
Penumbra
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The Living Constitution is a concept in American
constitutional interpretation which claims that
the Constitution has a dynamic meaning. The idea
is associated with views that contemporaneous
society should be taken into account when
interpreting key constitutional phrases.
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It holds that the Constitution was written with
broad, vague language in order to allow future
generations to adapt its meaning as they saw fit
to their unique issues.
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Certain rights can be found in the "penumbras"
and "emanations" of other constitutional
protections
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Example The Right to PrivacyIts supporters
argue that the right can be found in the penumbra
surrounding the 3rd, 4th, 5th and 9th amendments.
Opponents argue that if the word privacy is not
spelled out in the Constitution, it does not
exist.
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On the current court Stephen Breyer is argued to
be a strong supporter of the doctrine of a living
constitution while Antonin Scalia argues for
textualism
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Heres a link to a C-Span video where Breyer and
Scalia debate their respective theories of
interpretation.
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From the Supreme Court Website The Court and
Constitutional Interpretation
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The Second Dispute The role of the
courtsShould the courts be actively disposed to
overturn legislation they find problematic, or
should they restrain themselves and defer to the
political branches?
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judicial activismjudicial restraint
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Judicial Activism The view that the Supreme
Court justices (and even other lower-ranking
judges as well) can and should (re)interpret the
texts of the Constitution and the laws in order
to serve the judges' own considered estimates of
the vital needs of contemporary society when the
elected "political" branches of the Federal
government and/or the various state governments
seem to them to be failing to meet these needs.
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ExamplesBaker v CarrBrown v Board of Education
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Supporters of each case argue that the issues
involved (unequal representation in legislatures
and segregation in public school) could not be
changed through legislatures due to majority
rule. The courts had to actively intervene in
order to protect minorities.
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Some Supreme Court justices have developed
reputations as being not hesitant about striking
down laws, or making decisions actively.Activist
Judges
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Such judges are sometimes accused of legislating
from the bench, which violates the principle of
separated powers.
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The question here is whether such judges are in
fact acting beyond their proper roles, or whether
they are simply making decisions that are
unpopular to their accusers.The federal courts
are supposed to be able to make unpopular
decisions.
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Some readings along these lines - Activist
Judges Why are they creating such a stir?-
Activist judges? What's in a name?- Disorder In
The CourtActivist Judges Threaten Justice.- So
Who Are the Activists?
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Judicial Restraint The view that the Supreme
Court (and other lesser courts) should not read
the judges' own philosophies or policy
preferences into the constitution and laws and
should whenever reasonably possible construe the
law so as to avoid second guessing the policy
decisions made by other governmental institutions
such as Congress, the President and state
governments within their constitutional spheres
of authority.
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A judge exercising restraint is likely to yield
to the decisions made by the political branches
as long as they are within the limits of what is
constitutionally acceptable despite the fact
that they disagree with the substance of the law.
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It is an exercise of judgment, not will.
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An alternative theory Judicial
MinimalismWhile its still early, this is argued
to the viewpoint of Roberts and Sotomayor.
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Judicial minimalism is a judicial approach guided
by three major principles. First, judges do not
simply 'apply the law, they make it. Two, this
change is usually a response to a society that is
changing. Three, in practice this equates to
narrow rulings on the particular set of facts at
hand, not sweeping change
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Test Cases
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A test case is a political consequence of the
development of the power of judicial review.
People interested in changing a law that they
cannot affect through the legislature can
challenge whether it is properly based on the
Constitution.
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These can also force the courts to reconsider how
they have interpreted constitutional language in
the past. Previous precedence can be overturned.
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A classic example Brown v. Board
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The case was brought forward deliberately to
force the courts to reconsider its previous
ruling in Plessy v. Ferguson.
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Plessy was a failed test case from 1896 that
asked the courts to rule that segregated railroad
cars violated the equal protection doctrine in
the 14th Amendment.The effort failed. The court
ruled that separation into equal facilities did
not violate the spirit of equality.
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Almost sixty years later, Brown posed the same
fundamental question, this time in terms of
access to public schools.The court overturned
its previous ruling and agreed that separation
was inherently unequal, and overturned existing
state and local laws creating racially segregated
schools.
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Again, this points out that the power of judicial
review allows opponents of a law an additional
opportunity to overturn or change that law. The
success of the challenge will be based on the
ideological nature of the court.
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Next Topic
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The evolving design and composition of the courts
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The United States court system has evolved over
time due to the passage of several redesigns of
the court system in one of the many Judiciary
Acts passed over American history.
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It has also changed as a consequence of the
composition of the courts and who happens to be
Chief Justice at any one moment.
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Some links The History of the Supreme
Court.History of the Supreme Court of the
United States Wikipedia.The Supreme Court
Historical Society.The Federal Judicial Center.
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For a good survey of the history of the Federal
courts read Creating the Federal Judicial
System.
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Links to Wikipedia Pages on Judiciary Acts over
American History - Judiciary Act of 1789,
established the federal judiciary.- Judiciary
Act of 1801, also called the Midnight Judges
Act.- Judiciary Act of 1802, repealed the 1801
Act.- "Judiciary Act of 1866" may refer to two
different laws. Ch. 210, 14 Stat. 209 (July 23,
1866) is more commonly called the Judicial
Circuits ActCh. 288, 14 Stat. 306 (July 27,
1866) provided for the removal of certain cases
from state courts to the federal courts.-
Judiciary Act of 1869, also called the Circuit
Judges Act of 1869- Judiciary Act of 1891, also
called the Evarts Act or the Circuit Courts of
Appeals Act.- Judiciary Act of 1925, also called
the Certiorari Act or the Judges' Bill.
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(No Transcript)
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Eras of the Supreme Court
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There have been 17 Supreme Court Chief Justices.
Eras of the court are generally divide into
courts based on who happened to be chief
justice at that time
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First, a quick word on what a Chief Justice is
exactly. The Chief Justices responsibilities are
mostly administrative. The office has no special
judicial powers.
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The Chief Justice leads the business of the
Supreme Court. He or she presides over oral
arguments before the Court. When the Court
renders an opinion, the Chief Justicewhen in the
majoritydecides who writes the Court's opinion.
Finally, the Chief Justice has significant
agenda-setting power over the Court's meetings.
In the case of an impeachment of a President of
the United States, which has occurred twice, the
Chief Justice presides over the trial in the
Senate. In modern tradition, the Chief Justice
also has the ceremonial duty of administering the
oath of office of the President of the United
States. Wikipedia.
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For a quick overview of the history of the
Supreme Court based on the different times that a
specific person held the job of Chief Justice, I
highly recommend this page from the Supreme Court
Historical Societys website.
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More detailed information can be found here Oyez
ProjectIt separates all courts based on who
served together for a period of time. And of
course, heres the relevant wikipedia page.
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Some detail on each
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John Jay / The Jay CourtSeptember 26, 1789June
29, 1795
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John Rutledge / The Rutledge CourtJuly 1,
1795December 28, 1795
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Oliver Ellsworth / The Ellsworth CourtMarch 4,
1796September 30, 1800
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John Marshall / The Marshall CourtJanuary 31,
1801July 6, 1835
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Roger B. Taney / The Taney CourtMarch 15,
1836October 12, 1864
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Salmon P. Chase / The Chase CourtDecember 6,
1864May 7, 1873
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Morrison Waite / The Waite CourtMarch 4,
1874March 23, 1888
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Melville Fuller / The Fuller CourtOctober 8,
1888July 4, 1910
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Edward Douglass White / The White Court
December 19, 1910May 19, 1921
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William Howard Taft / The Taft CourtJuly 11,
1921February 3, 1930
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Charles Evans Hughes / The Hughes CourtFebruary
24, 1930June 30, 1941
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Harlan Fiske Stone / The Stone CourtJuly 3,
1941April 22, 1946
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Fred M. Vinson / The Vinson Court June 24,
1946September 8, 1953
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Earl Warren / The Warren CourtOctober 5,
1953June 23, 1969
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Warren E. Burger / The Burger CourtJune 23,
1969September 26, 1986
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William Rehnquist / The Rehnquist
CourtSeptember 26, 1986September 3, 2005
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John G. Roberts / The Roberts CourtSeptember
29, 2005present
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Each era of the court is influence by the results
of previous Presidential and Senatorial
elections. If the electorate votes in a liberal
direction, the courts will as positions are
made available shift in that direction, and
vice versa.
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Lets pay special attention to transition from
the Warren to the Rehnquist court.
143
Earl Warren, if you recall from the last set of
slides, was one of Eisenhowers self described
mistakes. He became Chief Justice at a moment
when the court was composed of people nominated
by FDR or Truman.
144
They were primed to begin to accept arguments
developed by liberals and progressives over
previous decades. Cases involving segregation,
speech and due process were coming to the court
with greater frequency.
145
The Warren Courts decisions tended to be
activist and were based on broad interpretations
of Constitutional language
146
Their decisions included some of the more famous
an consequential of the 20th Century, but they
also led to a backlash.
147
Brown v. Board of EducationBaker v. CarrMapp v.
OhioEngel v VitaleGriswold v. Conn
148
This is especially true of Brown v. Board of
Education which led to the dismantling of public
education in southern states, and a slow
mobilization against the court. Nixons Southern
Strategy involved using resentment against the
court as a way of getting the votes of the South.
149
Once Nixon became president, he appointed William
Rehnquist (who had been a law clerk when Brown
was decided) an Associate Justice. He would be
elevated to Chief Justice when Ronald Reagan
became President.
150
From 1968 1993, no Democratic President would
be able to make an appointment to the Supreme
Court. Many, though not all, of the Justices
appointed during this time promoted judicial
restraint and narrow interpretations of the
Constitution.
151
They rolled back many Warren Court decisions.
152
Three Examples One, they made it difficult to
prove racial discrimination. Two, they made it
easier for illegally obtained evidence to be
introduced into court. Three, they made it easier
to have religious displays on public ground.
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(No Transcript)
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The U.S. Supreme Court
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Click here for the current court
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The ConservativesAntonin ScaliaClarence
ThomasJohn RobertsSamuel Alito
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The LiberalsRuth Bader GinsburgStephen
BreyerElena Kagan (expected)Sonia Sotomayor
(expected)
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The Swing VoterAnthony Kennedy
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Each justice is allowed to hire a small handful
of law clerks to assist them. It is not unusual
for law clerks to later serve on the court.See
list of clerks here.
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Data Regarding Recent Court Decisions The
Supreme Court Data BaseScotus StatPack
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(No Transcript)
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How do cases get to the Supreme Court?Procedures
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A case from a lower court is appealed by the
lowing party. Specifically they request a Writ of
Certiorari. This is a writ where the court asks
the lower courts to send it the trial and
appellate records so the court can search for
errors.
164
If four justices choose to hear the case it is
placed on the courts calendar.The Rule of
Four.
165
If you won at the lower level, its generally bad
news if the Supreme Court agrees to hear your
case. More often than not the case will be
overturned.
166
The petitioner the party that initiates the
process sends a legal brief. The respondent
the party that won at the lower level can also
if it chooses. It doesnt have to.
167
The court also considers amicus briefs friend
of the court briefs sent in by parties not
involved in the specific case, but interested in
the outcome.
168
Oral arguments are held after the briefs are
read. Generally each side generally has 30
minutes to make their case. The proceedings can
be open-ended and even entertaining.Click here
for recordings and transcripts.
169
After oral arguments are held, conferences are
held internally which result in votes where the
justices line up for and against the petitioner.
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The Chief Justice assigns the responsibility to
write the majority decision the one that
carries weight to whoever he chooses, unless he
wants to do it himself.
171
Those in the minority can write dissenting
opinions.
172
Any justice can write a concurring opinions.