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The Vote in the Case
Variable Name
Spaeth Name
8 [ view ]

This variable provides information about each justice's vote in the case. It appears in the Justice Centered Datasets only. A regular concurrence is when the justice agrees with the Court's opinion as well as its disposition. A special concurence (i.e., a concurence in the judgment) is when the justice agrees with the Court's disposition but not its opinion. A jurisdictional dissent is when the justice disagrees with the Court's assertion or denial of jurisdiction. Such votes are counted as nonparticipations.

Determination of how a given justice voted is by no means a simple matter of culling the Reports. The justices do not always make their options clear.

Two problems, in particular, afflict efforts to specify votes: 1) whether the vote is a regular or a special concurrence, and 2) the treatment to be accorded a vote "concurring in part and dissenting in part."

The first typically manifests itself when a justice joins the opinion of the Court "except for . . ." Because such exceptions typically tend to approach de minimis status, these are coded as regular concurrences. For example, Chief Justice Burger concurred in the opinion of the Court in New York Gaslight Club, Inc. v. Carey, except for "footnote 6 thereof." 447 U.S. 54, at 71. Similarly, Blackmun's agreement with the Court in Pruneyard Shopping Center v. Robins, except for "that sentence thereof . . ." 447 U.S. 74, at 88. Where the Reports identify a justice as "concurring" or "concurring in part" said justice is treated as a member of the majority opinion coalition (i.e., as = 3), rather than a merely concurring in the result (i.e., as = 4).

Whereas the preceding problem pertains to determining which type of concurrence a vote is, the problem with votes concurring and dissenting in part is whether they are special concurrences (= 4) or dissents (= 2). This matter was addressed previously in connection with the variable voteUnclear (vote not clearly specified). A vote concurring and dissenting in part is listed as a special concurrence if the justice(s) doing so does not disagree with the majority's disposition of the case. This may occur when: 1) the justice concurring and dissenting in part only voices disagreement with some or all of the majority's reasoning; 2) when said justice disapproves of the majority's deciding or refusing to decide additional issues involved in the case; or 3) when in a case in which dissent has been voiced, the justice(s) concurring and dissenting in part votes to dispose of the case in a manner more closely approximating that of the majority than that of the dissenter(s).

In cases where determination of whether a vote concurring and dissenting in part is the former or the latter is not beyond cavil, an entry will appear in the voteUnclear variable of the affected case to allow users to make an independent judgment, if they are so minded. Note, however, that listing such votes as dissents (= 2) or special concurrences (= 4) has no effect on whether or not an opinion is written (the opinion variable).

See also notes under the majority vote (majVote) variable.
1 voted with majority or plurality
2 dissent
3 regular concurrence
4 special concurrence
5 judgment of the Court
6 dissent from a denial or dismissal of certiorari , or dissent from summary affirmation of an appeal
7 jurisdictional dissent
8 justice participated in an equally divided vote
Identification Variables
Background Variables
Chronological Variables
Substantive Variables
Outcome Variables
Voting & Opinion Variables

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