Re: The Definitive John G. Roberts Thread
Another interesting point Lazarus raises is whether plurality opinions should carry with them the force to overturn legislation. Plurality opinions are those where a majority of the Court agrees with the outcome, but not the reasoning that leads to that outcome.
When a judge writes an opinion, her colleagues have the choice to join, dissent, or concur (or recuse themselves, in special circumstances). When they join the opinion, they agree with both the disposition and the reasoning behind the disposition. When they concur, they agree with the disposition, but not the reasoning. When they dissent, they agree with neither.*
There have indeed been many decisions, particularly on the Rehnquist Court, where there has not been majority agreement on both the outcome and its reasoning. So in some cases, the whim of the democratically elected legislature has been thwarted by not only five of nine judges, but sometimes only four, or even three judges out of nine, taking into account both the judicial outcome and its underlying reasoning.
That's one of the circumstances under which Lazarus believes Dobson and his friends have a valid objection.
Radical!
* It's also possible to agree with the reasoning, but not the outcome, depending on one's attitude toward precedent, and ways of interpreting the Constitution, according to "original intent" and so on.
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