Unit 1: Constitutional Interpretation
and the Bill of Rights
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Ideologies
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Originalism (“The Conservatives”)
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As it was interpreted at the time of the Founding
Change only through elected branches or Constitutional Amendment
They tend to favor freedom over equality
Living Constitution (“The Liberals”)
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As society evolves, so can our interpretation of the Constitution
It is proper for the Courts to force social changes (14th Amendment)
They tend to favor equality over freedom
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Current SCOTUS makeup
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Originalism
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Chief Justice John Roberts (nominated by George W. Bush)
Justice Antonin Scalia (nominated by Ronald Reagan
Justice Clarence Thomas (nominated by George H.W. Bush)
Justice Samuel Alito (nominated by George W. Bush)
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Current SCOTUS makeup
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Living Constitution (in order to adherence)
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Justice Ruth Bader Ginsburg (nominated by Bill Clinton)
Justice Stephen Breyer (nominated by Bill Clinton)
Justice Sonia Sotomayor (nominated by Barack Obama)
Justice Elena Kagan (nominated by Barack Obama)
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Many 5-4 splits are along these lines (i.e. Citizen’s United, Heller)
However, some splits are not explained by these ideological splits…(?? 5-4
decisions this past term)
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Oct. 2014 Term (Ideological Splits)–
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“Conservatives” + Kennedy – ?? decisions: Din, Ayala, Horne, Michigan, Glossip
“Liberals” + Kennedy – ?? decisions: Alabama Black Caucus, Wong, Brumfield, Kingsley, Patel,
Inclusive Comm., Obergefell, Arizona Legislature
October 2014 Term (???? Splits)
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William-Yulee – Roberts, Ginsburg, Breyer, Sotomayor, Kagen
Walker – Thomas, Ginsburg, Breyer, Sotomayor, Kagan
Wynne – Roberts, Kennedy, Alito, Breyer, Sotomayor
Armstrong – Roberts, Scalia, Thomas, Breyer, Alito
Dart Cherokee, Yates – Roberts, Ginsburg, Breyer, Alito, Sotomayor
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Pragmatism as interpretation (historically the most common form of
interpretation)
Precedent important, but most important is the need to get the “right outcome”
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Current Justices as pragmatists (in order of how much pragmatism emphasized)
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Justice Anthony Kennedy (biggest current champion - libertarian)
Justice Stephen Breyer (deference to Congress and Executive)
Justice Sonia Sotomayor (especially in criminal procedure jurisprudence)
Chief Justice John Roberts (SCOTUS reputation concerns)
Justice Samuel Alito (especially in free speech jurisprudence)
Justice Ruth Bader Ginsburg (especially in areas of minority, especially
women, protections)
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You decide exercise
Roper v. Simmons
Texas v. Johnson
Kyllo v. United States