AP American Government
Unit 4: The Judicial Branch (13)
Mr. Andrew Conneen
Fall 2011
aconneen@d125.org
Unit 4 Syllabus:................................................................................................................................2
Davis v. Monroe County Board of Education.................................................................................3
Ch. 13: The Judiciary Review Questions:........................................................................................7
Judicial Branch Oral Exam Review:................................................................................................9
SCOTUS Justices:..........................................................................................................................11
To What End?................................................................................................................................17
What would Zimbabwe do?...........................................................................................................25
You decide......................................................................................................................................29
How to read the Constitution.........................................................................................................31
The Commandments.....................................................................................................................33
TKO--To Know Objectives:..........................................................................................................41
Unit 4 Syllabus:
For Tuesday, October 25: Match judicial vocabulary 1-36
For Wednesday, October 26: Match judicial vocabulary 37-45 and 17 SCOTUS cases
For Thursday, October 27: Read and annotate Davis. vs. Monroe
For Friday, October 28: Read “To What End?”
For Monday, October 31: Read “What would Zimbabwe do?” “ You
decide” “How to read the Constitution” Political Pumpkins due by
midnight. Post pictures @
For Tuesday, November 1: Read “The Commandments”
For Wednesday, November 2nd: C.O.D. Recite 2 vocabulary terms correctly; 1 SCOTUS case correctly;
and one unique and significant biographical fact. Ch. 13 Review Questions + quiz
For Thursday, November 3rd: Midterm Review
For Friday, November 4th: Midterm #2
2
Davis v. Monroe County Board of Education
United States Court of Appeals,Eleventh Circuit
No. 94-9121. -- August 21, 1997
Before HATCHETT, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK,
CARNES and BARKETT, Circuit Judges, and KRAVITCH and HENDERSON, Senior Circuit
Judges.***
Appellant, Aurelia Davis, brought this suit
against the Board of Education of Monroe
County, Georgia, (the “Board”) and two school
officials, Charles Dumas and Bill Querry, on
behalf of her daughter, LaShonda Davis. The
complaint alleged that the defendants violated
section 901 of the Education Amendments of
1972, Pub.L. No. 92-318, 86 Stat. 235, 373
(1972) (codified as amended at 20 U.S.C. § 1681 (1994)) (“Title IX”), and 42 U.S.C. § 1983,1 by failing to prevent a student at Hubbard
Elementary School (“Hubbard”) from sexually
harassing LaShonda while she was a student
there. ... Appellant sought injunctive relief
and $500,000 in compensatory and punitive
damages.
liberally because the issue is not whether
appellant will ultimately prevail but whether she
is entitled to offer evidence to support her
claims. ... We begin by describing the
allegations contained in appellant's complaint.
The district court dismissed appellant's
complaint in its entirety for failure to state a
claim upon which relief can be granted. See
Aurelia D. v. Monroe County Bd. of Educ., 862
F.Supp. 363, 368 (M.D.Ga.1994); see also
Fed.R.Civ.P. 12(b)(6). Appellant appealed the
district court's dismissal of her Title IX claim
against the Board,3 arguing that a school board
can be held liable under Title IX for its failure to
prevent sexual harassment among students. On
appeal, a divided three-judge panel reinstated her
Title IX claim against the Board. See Davis v.
Monroe County Bd. of Educ., 74 F.3d 1186,
1195 (11th Cir.1996). At the Board's request,
we granted rehearing en banc to consider
appellant's Title IX claim,4 and we now affirm
the district court's dismissal of this claim.
According to the complaint, a fifth-grade student
named “G.F.” was in several of LaShonda's
classes and initially was assigned to the seat next
to LaShonda in Fort's classroom. On December
17, 1992, while in Fort's classroom, G.F.
allegedly tried to touch LaShonda's breasts and
vaginal area. G.F. also allegedly directed
vulgarities at LaShonda, such as “I want to get in
bed with you” and “I want to feel your boobs.” LaShonda complained to Fort. After school that
day, LaShonda also told her mother, the
appellant, about G.F.'s behavior. The complaint
states that G.F. engaged in similar (although
unspecified) conduct on or about January 4,
1993,5 and again on January 20, 1993. LaShonda allegedly reported both incidents to
Fort and to appellant. After one of these first
three incidents, appellant called Fort, who told
appellant in the course of their conversation that
Principal Querry knew about one of the
incidents.
I. A. ...To this end, we take as true the
allegations appellant has set forth in her
complaint and examine whether those allegations
describe an injury for which the law provides
relief. ... We construe appellant's allegations
B. LaShonda Davis was enrolled as a fifth-grade
student at Hubbard during the 1992-1993 school
year. During that school year, Bill Querry was
the principal of Hubbard, and Diane Fort, Joyce
Pippin, and Whit Maples were teachers at the
school. The complaint alleges that the Board
administered federally funded educational
programs at Hubbard and supervised the school's
employees, including Principal Querry and
Teachers Fort, Pippin, and Maples.
3
G.F.'s misconduct continued. On February 3,
1993, G.F. allegedly placed a door-stop in his
pants and behaved in a sexually suggestive
manner toward LaShonda during their physical
education class. LaShonda reported this
incident to Maples, who was the physical
education teacher. On February 10, 1993, G.F.
engaged in unspecified conduct similar to that of
the December 17 incident in the classroom of
Pippin, another of LaShonda's teachers. LaShonda notified Pippin of G.F.'s behavior and
later told appellant, who then called Pippin to
discuss the incident. On March 1, 1993, G.F.
directed more unspecified, offensive conduct
toward LaShonda during physical education
class. LaShonda reported G.F. to Maples and
Pippin. An unidentified teacher allegedly told
LaShonda that Principal Querry was not ready to
listen to her complaint about G.F.
At some point around March 17, 1993, Fort
allowed LaShonda to change assigned seats
away from G.F. G.F., however, persisted in his
unwelcome attentions. On April 12, 1993, he
rubbed his body against LaShonda in a manner
she considered sexually suggestive; this incident
occurred in the hallway on the way to lunch. LaShonda again complained to Fort.
Lastly, on May 19, 1993, LaShonda complained
to appellant after school about more unspecified
behavior by G.F. Appellant and LaShonda then
paid a visit to Principal Querry to discuss G.F.'s
conduct. At this meeting, Querry asked
LaShonda why no other students had complained
about G.F. During this meeting, Querry also told
appellant, “I guess I'll have to threaten [G.F.] a
little bit harder.” On the same day, May 19,
G.F. was charged with sexual battery, a charge
which he apparently did not deny. The
complaint does not tell us who summoned the
police.
physical education class; one occurred in
Pippin's classroom; one occurred in a school
hallway; and one occurred in an unspecified
location. LaShonda reported four instances of
alleged harassment to Fort, two to Maples, and
two to Pippin. LaShonda reported the final
instance of harassment, the May 19 incident, to
appellant and Querry. The complaint does not
allege that any faculty member knew of more
than four instances of harassment, and the
complaint indicates that Principal Querry learned
of only one instance of harassment before his
meeting with appellant and LaShonda on May
19....
Appellant claims that LaShonda suffered mental
anguish because of G.F.'s behavior. As indicia
of this emotional trauma, the complaint states
that LaShonda's grades dropped during the
1992-1993 school year and that LaShonda wrote
a suicide note in April 1993. Based on the
above allegations, appellant contends that “[t]he
deliberate indifference by Defendants to the
unwelcomed [sic] sexual advances of a student
upon LaShonda created an intimidating, hostile,
offensive and abuse [sic] school environment in
violation of Title IX.” We therefore consider
whether Title IX allows a claim against a school
board based on a school official's failure to
remedy a known hostile environment 6 caused by
the sexual harassment of one student by another
(“student-student sexual harassment”).
In all, the complaint describes eight separate
instances of sexual harassment by G.F. These
eight instances of alleged harassment occurred,
on average, once every twenty-two days over a
six-month period. Three instances occurred in
Fort's classroom; two occurred in Maples'
4
SUPREME COURT OF THE UNITED STATES
SUPREME COURT OF THE UNITED STATES
GEBSER et al. v. LAGO VISTA
INDEPENDENT SCHOOL
DISTRICT
DAVIS v. MONROE COUNTY
BOARD OF EDUCATION et al.
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FIFTH CIRCUIT
Argued January 12, 1999–Decided May 24, 1999
Argued March 25, 1998–Decided June 22, 1998
Petitioner Gebser, a high school student in respondent
Lago Vista Independent School District, had a sexual
relationship with one of her teachers. She did not report
the relationship to school officials. After the couple was
discovered having sex and the teacher was arrested, Lago
Vista terminated his employment. During this time, the
district had not distributed an official grievance
procedure for lodging sexual harassment complaints or a
formal antiharassment policy, as required by federal
regulations. Petitioners filed suit raising, among other
things, a claim for damages against Lago Vista under
Title IX of the Education Amendments of 1972, which
provides in pertinent part that a person cannot “be
subjected to discrimination under any education program
or activity receiving Federal financial assistance,” 20
U.S.C. § 1681(a). The Federal District Court granted
Lago Vista summary judgment. In affirming, the Fifth
Circuit held that school districts are not liable under Title
IX for teacher-student sexual harassment unless an
employee with supervisory power over the offending
employee actually knew of the abuse, had the power to
end it, and failed to do so, and ruled that petitioners could
not satisfy that standard.
Held: Damages may not be recovered for teacher-student
sexual harassment in an implied private action under
Title IX unless a school district official who at a
minimum has authority to institute corrective measures
on the district’s behalf has actual notice of, and is
deliberately indifferent to, the teacher’s misconduct. Pp.
4—17.
O’Connor, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and Scalia, Kennedy,
and Thomas, JJ., joined. Stevens, J., filed a
dissenting opinion, in which Souter, Ginsburg,
and Breyer, JJ., joined. Ginsburg, J., filed a
dissenting opinion, in which Souter and Breyer,
JJ., joined.
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
Petitioner filed suit against respondents, a county
school board (Board) and school officials,
seeking damages for the sexual harassment of
her daughter LaShonda by G. F., a fifth-grade
classmate at a public elementary school. Among
other things, petitioner alleged that respondents’
deliberate indifference to G. F.’s persistent
sexual advances toward LaShonda created an
intimidating, hostile, offensive, and abusive
school environment that violated Title IX of the
Education Amendments of 1972, which, in
relevant part, prohibits a student from being
“excluded from participation in, be[ing] denied
the benefits of, or be[ing] subjected to
discrimination under any education program or
activity receiving Federal financial assistance,”
20 U.S.C. § 1681(a). In granting respondents’
motion to dismiss, the Federal District Court
found that “student-on-student,” or peer,
harassment provides no ground for a Title IX
private cause of action for damages. The en banc
Eleventh Circuit affirmed.
Held:
1. A private Title IX damages action may lie
against a school board in cases of student-onstudent harassment, but only where the funding
recipient is deliberately indifferent to sexual
harassment, of which the recipient has actual
knowledge, and that harassment is so severe,
pervasive, and objectively offensive that it can
be said to deprive the victims of access to the
educational opportunities or benefits provided by
the school. Pp. 7—22. reversed and remanded.
O’Connor, J., delivered the opinion of the
Court, in which Stevens, Souter, Ginsburg, and
Breyer, JJ., joined. Kennedy, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Scalia
and Thomas, JJ., joined.
5
!
!
6
Ch. 13: The Judiciary Review Questions:
Directions: Read Ch. 13 and answer on a separate sheet of paper. (Be sure to restate the
vocabulary of each question.)
1.
A court’s appellate jurisdiction refers to:
2.
What was the principal effect of Marbury v. Madison (1803) on the Supreme Court?
3.
Why is it important that the Supreme Court was given the right to rule on the
constitutionality of state laws?
4.
Describe a common law system:
5.
Describe precedent and explain its significance in the US court system.
6.
List the types of federal courts from lowest to highest:
7.
List the factors in selecting a SCOTUS nominee
8.
Define senatorial courtesy:
9.
Define docket:
10. Describe the current trend in the SCOTUS case load.
11. Define solicitor general
12. Describe the process of SCOTUS decision making.
13. Define and contrast judicial literalist, judicial originalist, and judicial activist.
14. Define majority, dissenting and per curium decisions.
7
8
Judicial Branch Oral Exam Review:
Terms! !
!
1. criminal law
6. indictment
11. petit jury
16. misdemeanor
21. Habeus Corpus
!
!
!
2. civil law
7. defendant
12. reasonable doubt
17. felony
22. Due Process
!
3. bail
4. grand jury
8. prosecution
9. plaintiff
13. guilty
14. liable
18. plea bargin
19. acquital
23. preponderance of the evidence
5. litigation
10. verdict
15. not liable
20. Common Law
24. Borked
Definitions
A. conviction verdict in a criminal case / verdict indicating no reasonable doubt of criminal wrongdoing
B. not guilty verdict in a criminal case / verdict indicating a reasonable doubt of criminal wrongdoing
C. the accused criminal or the person being sued
D. the legal team that tries to prove the guilt of accused criminals
E. laws that relate to disputes between parties not covered by criminal law
F. another term for lawsuits
G. laws that define crimes and provide for their punishment
H. the group of non-biased citizens who decide if there is enough evidence to bring someone to trial
I. when a grand jury decides there is enough evidence to bring a person to trial
J. money used to gain release from jail until trial date
K. the court’s decision
L. crimes that are of a less serious nature
M. admitting guilt to a lesser charge to avoid a harsher punishment
N. crimes that are of a more serious nature
O. the group of non biased citizens who make decisions in criminal and civil trials
P. the legal team that files a lawsuit
Q. legally responsibile for damages
R. when a defendant is found to be at least 51% responsible for damages
S. not legally responsibile for damages
T. standard used to determine guilt in criminal cases
U. body of law that relates to historically accepted standards of right and wrong
V. Constitutional guarantee that government must act according to established rules and cannot deprive persons of their rights
with unfair actions
W. guarantees that detained persons be charged with a crime
X. a judicial nominee who is rejected due to being ideologically extreme
Supreme Court Landmark Cases
a. Marbury v. Madison
d. Plessy v. Ferguson
g. Brown v. Board of Education
K. Gideon v. Wainwright
b. McCulloch v. Maryland
e. Gitlow v. New York
h. Engel v. Vitale
M. Miranda v. Arizona
c. Dred Scott v. Sanford
f. Korematsu v. US
J. Mapp v. Ohio
1.The USSC has the power of judicial review over the laws of Congress.
2.Federal law is superior over state law when the two conflilct.
3.Police must inform suspects of their rights before questioning those in custody.
4.For the first time, the Court decided the 1st and 14th amendments had influence on state laws
5.The government was permitted to deny the Japanese their constitutional rights because of military considerations
6.Public schools may not require students to recite a prayer even if that prayer is non-denominational.
7.Because of the Due Process Clause, state and local police must abide by the 4th Amendment.
8.Separate educational facilities were held to be "inherently unequal."
9.S.C. decision that allows the “Separate but equal” standard.
10.The Supreme Court ruled that slaves were property, not citizens.
11.All states must provide an attorney in all felony and capital cases for people who cannot afford one themselves.
9
Judicial Branch Oral Exam Review !
Terms!!
!
!
!
!
25. jurisdiction
28. brief
31. concurrent jurisdiction
33. judicial activism
36. writ of certiorari
39. selection of state judges
41. advise and consent
43. selection of federal judges
!
!
!
!
26. original jurisdiction
29. senatorial courtesy
32. USSC jurisdiction
34. litmus test
37. majority opinion
40. concurring opinion
42. stealth nominee
44. Illinois Circuit courts
!
!
!
B
27. appellate jurisdiction
30. exclusive jurisdiction
32. judicial review
35. amicus curiae
38. dissenting opinion
41. stare decisis
43. Due Process Clause
45. Federal District courts
!
Definitions
A. a legal document that summarizes the facts of the case, the lower court’s decisions, the lawyer’s legal argument,
and judicial precedents
B. power of a court to hear a case
C. the practice of gaining legislative acceptance of federal judges nominees.
D. a legal brief filed in court by a party interested but not directly involved in the case
E. a way to establish the ideological purity of judges
F. authority of courts to determine constitutionality of laws
G. when cases can be heard by either state or federal courts
H. power to hear a case first with a trial
I. authority to review the decisions of lower courts
J. when cases can only be heard by federal courts
K. can review any court’s case if the constitutionality of a law is questioned
L. judicial precedent; previous court decisions that are the basis for later rulings
M. granted when at least four S.C. justices agree to hear a case
N. The tendency of judges to interpret the Constitution according to their own views
O. position supported by a minority of justices
P. position supported by at least 5 justices
Q. Constitutional role given to the Senate in the confirmation process
R. a judicial candidate with a limited published record
S. rulings in which a justice agrees with the final opinion but for different reasons
T. They are nominated by the president and approved by the Senate
U. They are usually elected.
V. Part of the 14th Amendment that has made the states abide by parts of the Bill of Rights.
W. site of criminal and civil trials at the Federal level
Y. site of criminal and civil trials at the state level
Supreme Court Landmark Cases
A. Roe v. Wade 1973
C. Lawrence v. Texas
2003
E. Citizens United v. FEC
B. Griswold v. Connecticut 1965
D. Roper v. Simmons 2005
F. Bakke v. University of California
12.Government may take race into account to remedy past racial prejudice, but strict quotas are
unconstitutional.
13.States can regulate abortions only in certain circumstances based on privacy rights inherent in the Bill of
Rights.
14.Established that the “Right to privacy” was inherent in the Bill of Rights.
15.Corporations can make independent campaign donations in federal campaigns.
16.Capital punishment against those under 18 violates the 8th amend protection against cruel and unusual
punishment.
17.The USSC strikes down state anti-sodomy laws as violations of the 14th Amendment’s Due Process
Clause.
10
SCOTUS Justices:
Applying What We Have Learned About:
The Judiciary
Free Response
1. The Supreme Court is commonly thought to be “above politics.” However, one can argue that
the appointment of Supreme Court justices is political.
(a)
Identify three characteristics of Supreme Court nominees and discuss how each
characteristic has been politically relevant during the appointment process.
(b) Identify two methods that have been used by interest groups to influence the appointment
process. Explain how each of these methods has been used to influence that process.
11
U.S. Supreme Court
Fall, 2011
Name
Appointed by
Born Sworn In
Chief Justice
John Roberts (Catholic)
Bush 43
1955
2005
Reagan
1936
1986
Reagan
1935
1988
1948
1991
Clinton
1933
1993
Clinton
1938
1994
Bush 43
1950
2006
Obama
1954
2009
1960
2010
Harvard University, AB
Harvard University, JD
White House Counsel (1980s) and Deputy Soliciter-General
Associate Justices
Antonin Scalia (Catholic)
Georgetown University, AB
Harvard Law School, LLB
Justice - U.S. Court of Appeals, 1980-84
Anthony Kennedy (Catholic)
Stanford University, BA
Harvard Law School, LLB
Professor of Constitutional Law - University of the Pacific, 1965-88
Clarence Thomas (Catholic) Bush 41
Holy Cross College, AB
Yale Law School, JD
Chair, U.S. Equal Employment Opportunity Commission, 1982-90
Ruth Bader Ginsburg (Jewish)
Cornell University, BA
Columbia University Law School, LLB
Law Professor - Rutgers & Columbia, 1963-80
Stephen G. Breyer (Jewish)
Stanford University, BA
Harvard Law School, LLB
Justice - U.S. Court of Appeals, 1980-94
Samuel Alito (Catholic)
Princeton University, BA
Yale Law School, LLB
Justice - U.S. Court of Appeals, 1990-2006
Sonia Sotomayor (Catholic)
Princeton University, AB
Yale Law School, LLB
Judge U.S. District Court for the Southern District of NY, 1991
Elena Kagan (Jewish)
Obama
Princeton University, AB
Oxford University, M. Phil
Harvard Law School, JD
U.S. Solicitor General
12
The Selection of Supreme Court Justices
See: Yalof, David Alistair. Pursuit of Justices: Presidential Politics and the Selection of Supreme
Court
Nominees. Chicago: Univ. of Chicago Press, 1999.
NOTES
“The President ‘shall have power, by and with the advice and consent of the senate, to . . .appoint
ambassadors, other public ministers and consuls, judges of the supreme court, and all other
officers of the United States . . .’”
- Article II, Constitution of the United States
“During the last half-century Supreme Court appointments have become high stakes political
events,” (Yalof, pg. 168).
“. . . nomination politics usually ignores the more complex political environment in which
modern presidents must act, including the various intracies and nuances of executive branch
politics,” (Yalof, pg. 3).
The Political Landscape that shapes nominee selections:
•
•
•
•
•
Timing. Pending election? Public attention toward significant issues?
Composition of the Senate. 1986 Republican majorities easily confirmed Scalia and
Rehnquist yet one year later Bork faced an insurmountable Democratic majority.
Public Approval of the President. Andrew Johnson’s appointees? Forget about it.
Attributes of the Outgoing Justice. Bork’s strong conservative opinions contrasted the
“swing” status of outgoing justice Lewis F. Powell, Jr.
Realistic Pool of Candidates. An intricate web of vocational and political contacts
developed long before denouement.
13
What is Justice?
Four Greek Cardinal Excellences [Virtues]:
Wisdom - good judgment, guardianship
Bravery - courage, preservation of right
Temperance - order, control over desires
Justice - tending your own business, having and doing what is properly yours
“. . . the same exist (the cardinal excellences) in both the city and the individual soul . . .”
“The truth, however, seems to be this: Justice, although it resembles that mirage, is really concerned with internal
rather than external activity - with the true self and its business. It’s the condition of a man who allows none of the
classes in his soul to tend another’s business or to meddle with the others. First he puts what are truly his own
affairs in order, arranges and takes command of himself, becomes a friend to himself, and tunes his three parts like
three notes of a chord - high, middle, and low (i.e. the rational, spirited, and desiring parts) - binding both them and
whatever may lie between them into one temperate harmonious whole, one out of many. Only then does he act, if he
finds something to do in financial affairs, politics, private business, or the care of the body. And in all these
undertakings he will both think and call any act that produces or preserves this condition ‘beautiful and just,’ and the
knowledge that presides over such an act ‘wisdom;’ but he will call ‘unjust’ any action that tends to dissolve this
condition, and ‘ignorance’ the opinion which presides in turn over that.”
Plato’s Republic,
Book IV
Justice, throughout history, has been RELATIONAL (guide by which man direct their actions in regard to others),
APPROBATIVE (word of commending), and OBLIGATORY (duty).
Who Arbitrates Justice? and To What Extent?
“[The statement] on the front of this building - EQUAL JUSTICE UNDER LAW - describes a quest, not an
institution.” Chief Justice William Rehnquist discussing the U.S. Supreme Court building
“[I]t is emphatically the province and duty of the Judicial department to say what the law is.”
John Marshall, Marbury v. Madison (1803)
As a nation of law and not of men, the Supreme Court ordinarily limits itself to “judicial questions.” To what extent has the
judiciary entered into “political questions”?
See:
Luther v. Borden (1849). This case involved the Dorr Rebellion in Rhode Island over state malapportionment. Court asked to use
“Republican Form of Government” (Article IV, sec. 4) guarantee to alter a state political question. Chief Justice Taney
established “the political question” doctrine. This doctrine diverts responsibility for resolving certain constitutional issues to the
legislative and executive branches of government, (Hyman, Oxford Companion to the Supreme Court, pg. 516).
Colegrave v. Green (1946). Again at issue was malapportionment, this time in Illinois. Writing for a close majority Justice Felix
Frankfurter urged the Court to avoid this “political thicket.” The Court agreed and chose not to interfere in a “political question.”
Baker v. Carr (1962). This revolutionary case, described by Chief Justice Earl Warren as “the most vital decision,” ushered in a
redistribution of political power - as dictated by the Courts. Previously held “non - justiciable,” the Court opted to hear this
Tennessee malapportionment case. The Court, contrary to previous like minded cases, implored state legislatures to refrain from
reapportionment anomalies which violated Constitutionally guaranteed “equal protections.” Ironically his last words on the
Court and writing for the minority, Justice Frankfurter argued this decision “assert[ed] destructively novel judicial power
demands.” He feared such meddling could undermine longtime judicial authority. Frankfurter wrote the remedy “must come
through an aroused popular conscience,” (Oxford, pg. 58).
14
Differences between Criminal and Civil Law:
Criminal
Civil
Federal
How a case gets
to trial:
Legal teams:
Legal standard:
Verdict:
Punishment:
Path to SCOTUS:
Top appellate court: State of Illinois Appellate court:
Court of original jurisdiction:
15
Factors in Judicial Decision making:
16
To What End?
The Court of Last Resort
The “Supremes” are America’s ultimate arbiters
Joan Biskupic The Washington Post October 9, 1996
The Supreme Court's efforts to establish the law
of the land begin in secrecy and near solitude.
most mysterious parts of the national
government.
On Fridays during the court's term, which
officially begins on the first Monday in October,
the nine justices meet in a small, wood-paneled
conference room to decide which cases they
deem worth hearing.
"Many of the court's ultimate decisions are
predictable, but there are always a number of
surprises," said Maureen Mahoney, who was a
law clerk to Chief Justice William H. Rehnquist
in the 1979-80 term and now represents private
clients before the court. "And it is often the
suprising rulings that have the broadest impact
on Americans."
They meet without law clerks, secretaries or
anyone else. The most junior justice is seated
nearest the door so he can respond if anyone
knocks.
As the last resort for people who believe that
lower courts have failed them and as arbiter of
the Constitution, the Supreme Court will, simply
by selecting a case, immediately lift the lives and
human situations it contains to national
significance. Its rulings will affect not only the
two contesting parties, known as petitioner and
respondent, but also may change life for all
Americans for generations.
The drama of the cases chosen may be traced,
from the "petition for certiorari" -- a request that
the Supreme Court hear a case lost in a lower
federal or state court -- to the resolution
announced months later from the court's grand
mahogany bench.
About 7,000 petitions arrive by mail or
messenger each term at "the Marble Palace," as
historian John Frank called the court's building
on First Street NE just east of the Capitol. In the
end, the justices hand down about 80 signed
rulings, each reflecting decades of legal
precedent, the current justices' beliefs and
personalities and the enduring decorum that
defines this 207-year-old institution, one of the
The public normally notices only the final
decision in a case. But much skirmishing occurs
before that, most of it behind the scenes in
private debate, votes and negotiations among the
justices.
ACT I
The justices determine which cases to take. They
never explain the reason for their choices.
Whether or not a case is accepted "strikes me as
a rather subjective decision, made up in part of
intuition and in part of legal judgment,"
Rehnquist wrote in The Supreme Court: How it
Was, How it Is, his 1987 book about the court.
Important factors, he said, are whether the legal
question has been decided differently by two
lower courts and needs resolution by the high
court, whether a lower-court decision conflicts
with an existing Supreme Court ruling and
whether the issue could have significance beyond
the two parties in the case.
For example, the justices likely accepted the
sexual-harassment case brought by Paula Jones,
a former Arkansas state employee, against
President Clinton because it will test the
17
important question of whether a president should
have to defend himself against a lawsuit while in
office.
session. "Bam! Bam! Bam!" one associate
justice said in describing the group's swift
disposition of cases.
They also agreed for the term that began Monday
to review a case challenging the constitutionality
of a federal handgun-registration law, no doubt
in part because lower courts are divided about
whether the law, which requires sheriffs to check
a purchaser's background, unconstitutionally
burdens local officials.
Among the richest sources of inside information
about the court are the papers of the late justice
Thurgood Marshall (1967-1991). They describe
negotiations as cases moved through the process.
They show, for example, that only by the bare
minimum of four votes did the justices accept a
case that eventually yielded an important 1990
ruling on religious freedom.
But the justices do not automatically take on all
cases posing significant societal dilemmas. Last
June, for example, they refused to hear one on
the legality of college affirmative action
programs. The case did not garner the four votes
needed to accept a petition for review and to
schedule oral arguments on it.
Before those votes are cast in the closed-door
session, however, a case must pass muster with
several of the youngest, least experienced
lawyers in America -- the 36 law clerks who
serve the nine individual justices and who, in
effect, are their staff for a term. These clerks,
most often four to a justice, usually are recent
law school graduates and typically the cream of
their Ivy League schools.
It is the clerks who first winnow the 7,000 or so
annual petitions, settling on the select few that
they believe the justices themselves should
consider. There is no set number or quota for
each week's conference.
With the clerks' memos in hand and in the closed
conference room, the justices summarily reject
most of the appeals. They discuss petitions
flagged by one or more of the justices. Then,
according to justices' public accounts over the
years, they vote aloud, one at a time by seniority
but starting with the chief justice.
While the chief justice leads the meeting, the
most junior justice, now Stephen G. Breyer,
makes handwritten notes that will be passed to a
clerk for public announcement of disposition of
petitions. Rehnquist is known for running a brisk
As is his responsibility by tradition, Chief Justice
Rehnquist laid out the facts of the case and lower
court rulings on it: Two Native Americans had
been fired from their jobs at a private drug
rehabilitation center after ingesting peyote, a
cactus that contains the hallucinogen mescaline,
as part of an ancient Indian religious ceremony.
The men were denied unemployment
compensation by the state of Oregon because
officials said they were fired for illegal conduct.
State drug law prohibited use of peyote.
The men were never charged with a crime, and
they sued the state, contending that denial of
unemployment compensation violated their right
to religious freedom. The Oregon Supreme Court
sided with them, ruling that the anti-drug statute
should not outlaw religious use of peyote. The
state appealed to the Supreme Court.
When the case first arrived here in 1987,
Rehnquist voted to hear it. Next in seniority and
entitled to the second vote was William J.
Brennan Jr., who apparently was concerned that
the high court might overturn the Oregon
Supreme Court ruling and voted "no."
Next came Byron R. White, who voted "yes," the
second of four votes needed to accept. Marshall
voted "no". Harry A. Blackmun said he would
vote "yes" if three other solid votes were
committed to hearing it. This vote to "join-3," as
it is called, means that a justice is ambivalent but
willing to vote "yes" if three colleagues want the
case. Lewis F. Powell Jr., John Paul Stevens and
Sandra Day O'Connor voted "no."
18
Then it was time for the last and then-newest
justice. Antonin Scalia voted to take the case,
ensuring that with Blackmun's "join-3" vote, the
state's appeal of an order that it must pay the
men unemployment compensation would be
reviewed.
The case eventually would result in a decision
against the men. The justices overturned the state
supreme court decision saying there is no
violation of the First Amendment right of free
exercise when a general state law incidentally
infringes on religious practices.
The majority opinion, written by Scalia, upset
religious groups across the spectrum and
prompted Congress in 1993 to pass legislation to
reverse the ruling's legal effects and enhance
protection for minority religious practices. That
effort marked one of the rare times that Congress
successfully negated the effects of a court ruling
by saying laws infringing on religious practices
must meet a very strict "compelling interest" test.
A few years earlier, Congress had failed to
outlaw flag burning, which the Supreme Court
had ruled was a form of free speech protected by
the First Amendment. When Congress first
responded, in 1989, by passing a law prohibiting
flag desecration, the court ruled it
unconstitutional. Then when Congress tried in
1990 to amend the Constitution, the effort never
garnered the necessary two-thirds votes in the
House and Senate.
ACT II
Unlike the secret meeting to select cases, the
court's next step is quite public. Oral arguments
occur in the Supreme Court's stately, burgundy
draped, gold-trimmed courtroom before a firstcome, first-seated public audience.
On Mondays, Tuesdays and Wednesdays,
starting in October, the justices listen to lawyers
present each side of two or three cases a day. In
the 1980s, when the court accepted more cases,
the justices heard arguments in four cases a day.
Limited to 30 minutes each, one lawyer from
each side makes his or her best arguments. The
scene is tense and dramatic as the justices,
wearing black robes and sitting in individually
sized, black leather chairs, vigorously challenge
the lawyers, sometimes consuming large parts of
their time allotments.
Even experienced appellate advocates at times
become flustered or freeze as they stand at the
lectern below the long bench. Still, a lawyer's
appearance before the highest court can be the
highlight of a career. Lawyers have been known
to frame and hang the white quill pens they
receive as souvenirs.
"You don't have to be Clarence Darrow ... to
successfully argue a case before us," Rehnquist
said in a speech last May. "But you do have to be
prepared.... And you must expect hypothetical
questions posing slightly different factual
situations from yours and be prepared to answer
them."
When the justices pose different hypothetical
situations, they are not necessarily trying to
divert the lawyer. They are looking at ways their
decision might be applied in the future. The
justices also may use the occasion to influence
other justices, bolstering one side and
undermining the other.
During arguments about a Michigan law that led
police to confiscate a car in which a man had
been caught having sex with a prostitute, one
question was how an innocent co-owner of
property -- the man's wife, in this case -- could
protect her interest in the property.
When assistant solicitor general Richard Seamon
rose to argue as a "friend of the court" in favor of
Michigan and its forfeiture law, the justices
pressed him on his contention that the wife could
have better protected her interest as co-owner of
the car.
19
"What was she supposed to do?" Justice David
H. Souter asked, clearly sympathetic to the plight
of the twice-burned wife.
Seamon said the wife "can make out the defense
{as an innocent owner} by showing that she took
all reasonable steps to prevent it."
"You're not taking the position that she was
supposed to call the police and say, you better
watch out for such-and-such a car because my
husband is engaging in illegal acts in it?" Souter
asked.
Seamon reluctantly acknowledged that the
federal government believed that a co-owner
should report illegal activity involving the
property, even if a wife must snitch on her
husband.
"So it's the position of the solicitor general's
office that wives should call the police when
their husbands are using prostitutes?" Justice
Anthony M. Kennedy asked.
The laughter in the courtroom, which appeared
to be coming from the justices' clerks, prompted
Kennedy to add, "Don't let the laughter of clerks
who have never even argued a case in a
municipal court deter you from your answer."
Eventually, the confiscation was upheld 5-4, with
Souter and Kennedy among the dissenters.
indeed urinates. Then, in a break from decorum,
the lawyer, facing tough questioning, blurted, "In
fact, I might do so here." The school district
won, 6-3.
For all their attendant drama, oral arguments are
only one part of the decision-making process.
There also are written briefs submitted by each
side -- the views of the solicitor general, who is
the federal government's top lawyer before the
court, and other amicus curiae, or "friends of the
court." Also, the justices review previous cases
on a subject, prepare their own interpretations of
the law or constitutional provision and
sometimes, though rarely, turn to outside experts
on the issue.
For example, one of the most controversial
elements of the court's unanimous decision in
Brown v. Board of Education (1954), striking
down the "separate but equal" doctrine long used
to justify school segregation, was Chief Justice
Earl Warren's reference to sociological and
psychological studies. The studies concluded that
segregated schools stigmatized children.
ACT III
The justices vote, sometimes more than once
because they may switch sides during the
process.
While the give-and-take usually is dominated by
arcane legal references, occasionally a case
inspires the justices to use more common
vernacular.
The first vote on a case is taken in the week of
oral arguments. For cases heard on Mondays, the
justices vote on Wednesday afternoon, again in
the secrecy of their conference room. For cases
heard on Tuesday and Wednesday, they vote
Friday.
When they reviewed privacy issues surrounding
a school district requirement that student athletes
submit urine samples for drug testing, locker
room life was topic A. Rehnquist referred to
"guys walking around naked," and Breyer said
providing a urine sample might not be so
intrusive since urination is a fact of life.
After the vote, the most senior justice in the
majority assigns the task of writing the majority
opinion. The most senior justice on the losing
side decides who will write the main opinion for
the dissenting viewpoint. The other justices are
free to write their own statements if they wish,
but the majority opinion speaks for the court.
The lawyer representing a student who had
protested the testing conceded that everyone
Sometimes, justices say, writing an opinion that
all justices in the majority will sign is difficult.
20
Sometimes, justices discover through writing an
opinion and trying to justify it with prior court
rulings that the case was not what it seemed. On
occasion, the chief justice has thrown up his
hands as the majority switched from its original
position.
Refering first to Scalia by his nickname,
Rehnquist wrote: "After Nino circulated his draft
opinion coming out to `reverse' rather than to
`affirm,' I reassigned this case to myself. I
thought that in keeping with previous practice,
whether or not well understood, it was desirable
that someone at least make an effort to write out
the view on the merits which had commanded a
majority at conference. After having made that
effort, I have decided that Nino was correct.... I
therefore assign the case back to Nino and join
his revised opinion."
Stevens, known for his singular legal approach,
regularly jokes about losing the majority as he
writes the formal opinion.
In a 1990 criminal case, he wrote to Rehnquist,
"Dear Chief: Having been a specialist in
converting draft majority opinions into dissents
since my first term on the court {1975}, I can
assure you that I will produce a draft `with all
deliberate speed.' " Stevens indeed did lose the
majority, and a few weeks later when Rehnquist
announced the court's opinion, Stevens was in
the dissent.
In many instances, the justices may be perfectly
pleased with what the author of the majority
opinion is writing but will offer thoughts for
variations on the legal analysis or language. The
author's task is to preserve his or her viewpoint,
accommodate suggestions if it means keeping
the majority and not to turn off others in the
group.
Based on what outsiders are able to discern from
the justices' public statements and from the
opening of once-private papers of some justices,
the justices do not trade votes during this
process. Rather, they engage in a constant
conversation by way of memos.
Justice O'Connor once pointedly observed of this
process, as she herself was trying to induce
another justice to change his draft opinion, "I
realize that it is much easier to cast suggestions
over the chef's shoulder than it is to have one's
head in the oven."
Law clerks are heavily involved in this stage,
writing draft opinions, researching past cases
that will support a ruling, even strategizing. For
example, as the justices were deciding whether
to uphold an Indiana law against nude dancers in
1991, in the face of a First Amendment
challenge, a clerk wrote to Marshall:
"BRW {Byron R. White}, the senior justice in
the dissent, has now circulated an opinion. I
recommend that you join it. The chief's majority
opinion has gotten no support, but AS {Antonin
Scalia} has circulated a concurrence that is quite
as damaging as would be the chief's. I therefore
recommend that you join BRW's dissent right
away, for whatever momentum that might help
build for the dissenters."
But whatever Marshall might have tried to do, it
didn't matter. Rehnquist prevailed in a 5-4
decision rejecting the challenge. The court said
the law did not violate free speech rights.
The give-and-take can last for weeks and
months. But fortunately, there is June, when the
court traditionally wraps up its work.
Beginning in early May, the court stops hearing
oral arguments and increases its public release of
decisions. Rulings traditionally are handed down
on Mondays, although as the court nears the end
of the term, they are announced on other days,
too.
The media are never told in advance how many
opinions to expect on a given day. Reporters will
be told whether it is a "regular" day, meaning
four or fewer opinions, or a "heavy" day (five or
more).
21
Returning to the very public forum of the
courtroom, the justice who has written the
majority opinion briefly announces the court's
ruling from the bench.
Justice White (1962-1993) made the tersest of
summaries, giving the case number and saying it
was on file in the clerk's office. Today, many
justices make comparatively lengthy bench
announcements, giving the facts of the case, how
lower courts ruled and details of the high court's
decision.
No matter how each term's rulings change
American government or individual lives, the
nine justices usually remain detached, almost
never commenting on their work but returning to
their conference room each October to start the
process again.
Last term, this last act produced a few dramatic
moments. When Justice David H. Souter
dissented from a ruling that gave states a major
victory over Congress in an Indian gambling
dispute, he took the unusual step of reading
portions of his opinion from the bench, declaring
that the majority opinion "flies in the face of the
Constitution's text."
A few weeks later, Justice Ruth Bader Ginsburg,
who before becoming a judge was a women's
rights lawyer, announced the court's ruling that
Virginia Military Institute's exclusion of women
is unconstitutional. In the opinion, she said she
was relying on a major 1982 sexual equality
decision by O'Connor, the only other woman on
the bench. At that moment, Ginsburg looked up
and exchanged appreciative glances with
O'Connor.
As the court's process ends and the justices begin
their long summer vacations, public response
begins.
Just last term, the ruling against VMI prompted
The Citadel, a similarly situated military college
in Charleston, S.C., to open its doors to the first
class of women. Last month, VMI's board
narrowly voted to do the same next year.
Also, a court decision striking down two blackmajority and one Hispanic-majority voting
districts in Texas because they were drawn along
racial lines meant the state had to draw new
district boundaries and hold special elections this
fall in 13 of Texas's 30 congressional districts.
22
NOTABLE JUSTICES IN HISTORY
Since the first members of the Supreme Court's
were named in 1789, 108 justices have served.
There have been 16 chief justices. Several
members became great figures in history or were
distinguished for contributions beyond their
court service.
The following four chief justices are among
those who greatly shaped the course of the
American judiciary and the nation's overall
progress:
John Marshall (served 1801-1835) Often called
"the great chief justice," Marshall was
instrumental in establishing the court's authority
in the national government. During his tenure,
the court began issuing single majority opinions,
enabling it to speak with a more definitive,
unified voice. Rulings during this era bolstered
federal power over states. Marshall wrote the
1803 decision in Marbury v. Madison, which
established judicial review of laws passed by
Congress.
Charles Evans Hughes (1910-1916, associate
justice; 1930-1941, chief justice) He presided
over the court during the Great Depression and
the New Deal era. Known as a master of
consensus, he guided the court in its
transformation from opposing much of the New
Deal legislation to acceptance of President
Franklin D. Roosevelt's programs for a new
national economy.
William Howard Taft (1921-1930) The only
person to serve both as president (1909-1913)
and a justice, Taft was appointed chief justice by
President Warren G. Harding. As chief, Taft is
remembered more for innovations in judicial
administration than for a substantive legal
agenda. He successfully pressed Congress to
pass laws that gave the court almost unlimited
discretion to decide which cases it will hear.
Earl Warren (chief justice, 1953-1969) A
former California governor, Warren, though
apointed by Republican President Eisenhower,
took a decidedly liberal course in a socially
stormy era. His legacy includes decisions
forbidding school segregation, fairer mapping of
voting districts and enhancing rights of
defendants in criminal trials…
Crucial Cases That Shaped the Nation
The Supreme Court has issued dozens of
landmark rulings during its 207-year history, and
many shaped American government and the
breadth of individual rights. While some did not
endure, such as the 1857 "Dred Scott" ruling (see
Scott v. Sandford below), all reflect the mood of
the court and dilemmas facing the country at
historic junctures. These 10 are among the most
crucial.
Marbury v. Madison (1803) Asserted the court's
power to review acts of Congress and invalidate
those that conflict with the Constitution. When
incoming President Thomas Jefferson refused to
honor last-minute appointees of President John
Adams, one of those appointees, William
Marbury, sued the new secretary of state, James
Madison, and asked the Supreme Court to order
Madison to deliver his commission as a justice
of the peace. The court said it lacked the power
to do this because the law that Congress passed
authorizing the court to issue such orders had
gone further in granting power than the
Constitution allowed. The case, while limiting
the court's power in this instance, ultimately
established its power to declare acts of Congress
unconstitutional.
McCulloch v. Maryland (1819) In ruling that
Congress has authority to charter a national
bank, the court said Congress had broad power
to enact all laws that are "necessary and proper."
The ruling became a benchmark for the court's
approval over the decades of broad national
involvement in economic and social programs.
Scott v. Sandford (1857) Declared that Congress
had no authority to prohibit slavery in the
territories. Dred Scott, a Missouri slave who had
traveled to and worked in "free" states and
territories, asserted that he should be entitled to
23
his freedom under the legal principle, "once free,
always free." But the court said blacks could not
achieve U.S. citizenship and therefore could not
sue in federal courts. Ruling that Congress could
not abolish slavery in the territories, the court
also declared the Missouri Compromise of 1820
unconstitutional. The ruling, which helped to
precipitate the Civil War, has long been
considered one of the court's great "selfinflicted" wounds.
Brown v. Board of Education of Topeka (1954)
Struck down the "separate but equal" doctrine
that the court established in 1886 in Plessy v.
Ferguson, which permitted racial segregation of
public facilities. In a case consolidating several
challenges to segregation of public schools, the
court concluded "that in the field of public
education the doctrine of `separate but equal' has
no place. Separate educational facilities are
inherently unequal." The opinion spurred a social
revolution and changes in race relations across
America.
Baker v. Carr (1962) Allowed federal courts to
hear challenges to demarcation of voting districts
and to require them to have more nearly equal
populations. The case began in Tennessee, which
had not redrawn state legislative districts for
about 60 years, even as many moved out of rural
districts and into cities. The decision broke the
rural lock on political power and gave urban
voters more nearly equivalent representation.
Engle v. Vitale (1962) Forbade public schools
from requiring students to recite prayers. New
York school officials had recommended that
students say a specified nondenominational
prayer each day, but the court said "the
constitutional prohibition against laws respecting
an establishment of religion must at least mean
that in this country it is no part of the business of
government to compose official prayers...."
New York Times Co. v. Sullivan (1964) Ruled
for the first time that the First Amendment
covers libelous statements. The court said public
officials may not win damages for defamatory
statements regarding their official conduct unless
they can prove actual "malice," that is, that the
statements were made knowing that they were
false or with reckless disregard of whether they
were true or false.
Miranda v. Arizona (1966) Required police to
inform suspects in custody of their right to
remain silent, that anything they say may be used
against them and that they have a right to
representation by a lawyer before interrogation.
At the time, the 5-4 decision distressed law
enforcement and outraged then-President
Richard M. Nixon and other politicians, but the
decision endured.
Roe v. Wade (1973) Made abortion legal
nationwide through a constitutional right to
privacy. Using legal reasoning that would be
attacked by some scholars and generate a new
"right to life" movement among the public, the
court said the 14th Amendment's due process
clause guarantees a woman's right to end a
pregnancy. In 1989, the court came close to
overruling Roe v. Wade. But in 1992, the justices
upheld the essential holding of Roe in Planned
Parenthood of Southeastern Pennsylvania v.
Casey.
United States v. Nixon (1974) Ruled that neither
the great deference afforded the president nor the
doctrine of "separation of powers" gives a
president an absolute privilege of immunity from
a court's demand for evidence in a criminal trial.
The decision forced President Nixon to turn over
tapes of White House conversations relating to
the break-in at the Democratic Party national
headquarters in the Watergate office building.
Within three weeks, Nixon resigned the
presidency.
24
What would Zimbabwe do?
Emily Bazelon Atlantic Monthly November, 2005
"Comparativism"—using foreign legal
rulings to help interpret the Constitution—
is startlingly on the rise in the U.S. Supreme
Court
In 1999 one of the scores of death-row appeals
that land at the Supreme Court each year caught
the eye of Justice Stephen Breyer. Thomas
Knight, who had been sentenced to death by the
State of Florida in 1975 for killing a married
couple, argued in the appeal that he had been
living in anguished anticipation of execution for
so long that his sentence had become a form of
cruel and unusual punishment. Knight's case was
joined with that of Carey Moore, who'd been on
Nebraska's death row for nineteen years for
killing two cabdrivers.
No court in the United States had ever lifted a
death sentence for this reason. But Breyer had a
hunch that courts in other countries might have
done so, and he asked his clerks to investigate.
He had issued a similar directive earlier that
term, when he wanted to know more about other
countries' approaches to campaign-finance law.
"I remember his exact words," says one of
Breyer's clerks from that year. "He said, 'We're
not the only court in the world. See what they
have to say.'" Breyer has come to refer to
proponents of this approach—namely, judges
who use international legal precedents for
context as they interpret the U.S. Constitution—
as "comparativists."
In their death-penalty research Breyer's clerks
found several cases in which courts from around
the world, including the European Court of
Human Rights and the Supreme Court of India,
had expressed serious reservations about whether
executions conducted after lengthy delays were
humane. When the Court declined to review
Knight and Moore's case, Breyer took the
unusual step of commenting on it anyway. In a
dissent to the Court's denial of review he wrote,
"A growing number of courts outside the United
States—courts that accept or assume the
lawfulness of the death penalty—have held that
lengthy delay in administering a lawful death
penalty renders ultimate execution inhuman,
degrading, or unusually cruel."
None of Breyer's colleagues signed on to the
dissent. And in a preview of the resounding
rejection of comparativism soon to come from
other hard-line conservatives, Clarence Thomas
wrote an opinion ridiculing Breyer's approach.
"Were there any support in our own
jurisprudence," he argued, "it would be
unnecessary for proponents of the claim to rely
on the European Court of Human Rights, the
Supreme Court of Zimbabwe, the Supreme Court
of India, or the Privy Council."
Twenty years ago the exchange of law among
nations consisted almost entirely of a "vigorous
overseas trade in the Bill of Rights," as one
British barrister has put it. Canada, for example,
followed the United States' lead on freedom of
religion; India did so in balancing the values of
freedom of expression and privacy in libel law.
But times have changed, and many countries'
highest courts have now come into their own.
The courts of South Africa and India, for
example, have upheld rights to education,
housing, and health or medical care that
American courts have not recognized. In Europe,
too, courts are becoming bolder, despite a
tradition of parliamentary supremacy. Breyer
feels strongly that the United States can learn
from these developments abroad. "Really, it isn't
true that England is the moon, nor is India," he
said in a debate with Justice Antonin Scalia last
January at American University, in Washington,
D.C. Judges in those countries "have problems
… similar to our own."
Breyer is no longer a lonely crusader:
comparativism is startlingly in the ascendant in
25
the U.S. Supreme Court, among both the
relatively liberal justices and the centrist
conservatives. Foreign precedents were at the
heart of the Court's recent decisions to strike
down sodomy laws (Lawrence v. Texas, 2003)
and to ban the execution of juveniles (Roper v.
Simmons, 2005). Both opinions were written by
Justice Anthony Kennedy, who often votes with
the Court's conservative bloc. They did not sit
well with observers on the right. Some
conservatives have called for Kennedy's
impeachment—and have introduced bills in the
House and Senate that would ban American
courts from employing any foreign judgment
other than centuries-old English common law
when interpreting the Constitution.
Kennedy and the other justices who have
sympathized with comparativism (Breyer, Ruth
Bader Ginsburg, David Souter, and John Paul
Stevens, along with Sandra Day O'Connor, who
announced her resignation last summer) have
trod lightly in view of the conservative uproar.
Breyer argues that comparativism has a modest
aim—to "cast an empirical light" that will reveal
new solutions to shared legal problems. He and
his allies have pointed out that looking abroad
for precedents is not new for the Court: in cases
from the 1950s through the 1980s (and also
during the 1890s) majorities took account of
foreign practices in deciding whether a
punishment was permissible. This attracted little
notice until Scalia decreed, in the 1989 case
Stanford v. Kentucky (which allowed juvenile
execution), that in weighing whether a
punishment was cruel and unusual the Court
would consider only "American conceptions of
decency" (his italics).
In overturning Stanford this year the Roper
majority stressed that American courts are not
bound to follow rulings from abroad. But of
course foreign judgments don't need to be
formally binding to be persuasive. Kennedy
observed in his opinion that the United States
was the only country in the world that still
executed minors.
Harold Hongju Koh, the dean of the Yale Law
School, is one of the leading academic
proponents of comparativism. Koh is a veteran
litigator who led a partly successful and
attention-getting battle in the mid-1990s to force
the federal courts to grant a broad array of rights
to Haitian émigrés, at Guantánamo Bay and on
their way to American shores. He also served as
President Bill Clinton's assistant secretary of
state for human rights from 1998 to 2001.
Diplomatic work runs in Koh's family: during
the 1950s his father was South Korea's minister
to the United States. (The family chose to stay in
this country after a 1961 coup.)
Harold Koh loved his work as a Clinton-era
diplomat but came to hate some of the American
practices he was asked to defend—especially
capital punishment. He felt that the death penalty
alienated U.S. allies in Europe and Latin
America and gave countries in the Middle East
and Asia an excuse to ignore American entreaties
to improve their human-rights records. Since his
term in the State Department ended, Koh has
attacked the death penalty as antithetical to
American foreign-policy interests, most recently
in an amicus curiae brief in Roper. If the United
States isn't keeping pace with the rest of the
civilized world, Koh argues, then for its own
good it needs to change.
One of the leading opponents of comparativism
is John Yoo—a former student of Koh's who is
now a law professor at the University of
California at Berkeley. Like Koh, Yoo is of
Korean descent; he immigrated to the United
States as a child. He took three of Koh's classes
at Yale Law School from 1989 to 1992, when
Koh was a young professor; he also worked for
Koh as a teaching assistant and co-authored a
paper about international economic power with
him. "I wouldn't be where I am without Harold,
without his guidance and support," Yoo told me.
Yet Yoo never shared Koh's embrace of
international law. His early major academic
articles attacked Koh's theories, and he has
continued to write skeptically about the
delegation of authority to international
institutions. In 2001 Yoo went to work for
26
George W. Bush, becoming, along with Koh, one
of only three Korean-Americans ever to win a
high-level appointment in a U.S. administration.
As a deputy assistant attorney general in John
Ashcroft's Justice Department, Yoo wrote the
memorandum that stripped foreign detainees at
Guantánamo Bay and in Afghanistan of the
protections of the Geneva Convention, and he
co-authored the notorious "torture memo" that
justified the administration's authorization of
extreme interrogation tactics.
Yoo says he was simply giving the government,
as his client, "a good sense of the lines that the
law draws." But Koh found Yoo's actions
unforgivable. "If a client asks a lawyer how to
break the law and escape liability," he said
before the Senate Judiciary Committee during
the confirmation hearings for Attorney General
Alberto Gonzales, "the lawyer's ethical duty is to
say no." Backed by more than 200 law
professors and lawyers who expressed similar
sentiments in a public statement, Koh called the
torture memo "perhaps the most clearly
erroneous legal opinion I have ever read."
Yoo says he and Koh have not spoken for some
time. In print, however, they continue to clash
over the questions raised by Roper and
Lawrence. Because foreign judges "are not
responsible to the American political system,"
Yoo argues in an essay that will be published in
the Hawaii Law Review, relying on their
decisions is at odds with the Constitution.
Viewed through this lens, invoking what
Kennedy referred to in Roper as "the
overwhelming weight of international opinion" is
an end run around American democracy. Richard
Posner, a federal-appeals-court judge and a law
professor at the University of Chicago, agrees.
"Such nose-counting is like subjecting legislation
enacted by Congress to review by the United
Nations General Assembly," he wrote last year in
the magazine Legal Affairs.
To Koh, on the other hand, it is the job of the
courts to bring Congress and the states to heel.
"It's very basic in the Bill of Rights," he says.
"We hold these truths to be self-evident, whether
the majority agrees with them or not. Rights are
in some sense anti-democratic; to trumpet
democracy as the all-important value is to
denigrate them."
The strongest argument against comparativism is
a matter of practice, not principle. Those who
draw on foreign laws and precedents tend to use
them selectively, when it suits their purposes.
This makes their opponents cry foul. "We are
one of only six countries in the world that allows
abortion on demand at any time prior to
viability," Scalia said to Breyer in their American
University debate. "Should we change that
because other countries feel differently?"
If comparativism continues to gather momentum,
as seems likely, Scalia's question may be taken
up in earnest. "The first opposition strategy is to
argue that these materials are illegitimate," says
Mark Tushnet, a professor of law at Georgetown
University. "But if you lose that battle, then you
start citing them yourself." A victory for
comparativism could have conservative judges
citing international precedents that support their
own arguments—laws, say, that restrict abortion
in Germany and Ireland, or limit free speech in
Canada. That would be the foreign-law version
of "If you can't beat 'em, join 'em."
The Atlantic Monthly, November 2005
27
!
!
28
You decide
The Supreme Court sits at the center of the
American judicial system. It is regarded as the
principal institution interpreting the Constitution.
Because the Supreme Court has the power of
judicial review—to review laws and government
practices in order to judge their constitutionality
—the Court has been a major participant in the
American political process. Such participation
has put the Court at the center of controversy.
The controversy has arisen principally for two
reasons. First, some critics do not approve of the
specific decisions the Court has made—most
notably relating to ending racial and gender
discrimination, the rights of individuals accused
of committing a crime, prayer in the public
schools, and abortion. Second, some critics
object, not to specific decisions, but to the
processes by which the Court reaches its
decisions. It is to that objection that this Iesson is
addressed. In the debate that follows, [former]
Attorney General Edwin Meese III and [former]
Supreme Court Justice William J. Brennan, Jr.,
debate how the Supreme Court should be guided
in reaching decisions. Meese argues that the
Supreme Court should base its decisions on a
"Jurisprudence of Original Intention"—that is to
say, principles in which the writers of the
Constitution believed. The Court, in Meese's
view, should determine exactly what the writers
of the Constitution thought in the late eighteenth
century and then apply these principles to the
cases before them today. Justice William
Brennan, in contrast, believes that the
Constitution should be interpreted with respect to
changes in social values. In Brennan's view, the
Court must read the Constitution in the context
of our times.
Jurisprudence of Original Intention
By Edwin Meese III, Attorney General of the
United States.
From a speech delivered to the American Bar
Association, July 9, 1985.
What, then, should a constitutional jurisprudence
actually be? It should be a jurisprudence of
Original Intention. By seeking to judge policies
in light of principles, rather than remold
principles in light of policies, the Court could
avoid both the charges of incoherence and the
charge of being either too conscrvativc or too
liberal.
A jurisprudence seriously aimed at the
explication [explanation] of original intention
would produce defensible principles of
government that would not be tainted by
ideological predilection [preference].
This belief in a Jurisprudence of Original
Intention also reflects a deeply rooted
commitment to the idea of democracy. The
Constitution represents the consent of the
governed to the structures and powers of the
government. The Constitution is the fundamental
will of the people; that is why it is the
fundamental law. To allow the Court to govern
simply by what it views at the time as fair and
decent, is a scheme of government no longer
popular; the idea of democracy has suffered.
The permanence of the Constitution has been
weakened. A constitution that is viewed as only
what the judges say it is, is no longer a
constitution in the true sense.
Those who framed the Constitution chose their
words carefully; they debated at great length the
most minute points. The language they chose
meant something. It is incumbent upon the Court
to determine what that meaning was. This is not
a shockingly new theory; nor is it arcane [secret]
or archaic [out-of-date].
Jurisprudence of Original Intention would take
seriously the admonition [gentle warning] of
29
John Marshall in Marbury that the Constitution
is a limitation on judicial power as well as
executive and Iegislative. That is what Chief
Justice Marshall meant in McCulloch when he
cautioned judges never to forget it is a
constitution they are expounding [interpreting].
It is our [the Reagan administration] belief that
only "the sense in which the Constitution was
accepted and ratified by the nation," and only the
sense in which laws were drafted and passed
provided a solid foundation for adjudication [a
judge's decision]. Any other standard suffers the
defect of pouring new meaning into old words,
thus creating new powers and new rights totally
at odds with the logic of our Constitution and its
commitment to the rule of law.
Jurisprudence Through Adaptibility
By William J. Brennan, Jr., Supreme Court
Justice.
Excerpted from a speech delivered at
Georgetown University, September 13, 1985.
There are those who find Iegitimacy [lawfulness]
in what they call "the intentions of the Framers."
This view demands that Justices discern
[recognize] exactly what the Framers thought
about the question under consideration and
simply follow that intention in resolving the case
before them.
It is arrogant to pretend that from our vantage we
can gauge accurately the Intent of the Framers on
application of principle to specific, contemporary
questions.
Perhaps most importantly, while proponents of
[jurisprudence of original intent] justify it as a
depoliticalization of the judiciary, the political
underpinnings of such a choice should not
escape notice. A position that upholds
constitutional claims only if they were within the
specific contemplation of the Framers in effect
establishes a presumption of resolving textual
ambiguities against the claim of constitutional
right. This is a choice no less political than any
other; it expresses antipathy [dislike] to claims of
the minority to rights against the majority.
Those who would restrict claims of right to the
values of 1789 specifically articulated [spelled
out] in the Constitution tum a blind eye to social
progress and eschew [avoid] adaptation of
overarching principles to changes of social
circumstance.
Another, perhaps more sophisticated, response to
the potential power of judicial interpretation
stresses democratic theory: because ours is a
Govemment of the people's elected
representatives, substantive value choices should
by and large be left to them.
The view that all matters of substantive policy
should be resolved through the majoritarian
process has appeal under some circumstances,
but I think it ultimately will not do. Unabashed
enshrinement of majority will would permit the
imposition of a social caste system or wholesale
confiscation of property so long as a majority of
the authorized legislative body, fairly elected,
approved.
Our Constitution could not abide such a
situation. It is the very purpose of a constitution
—and particularly of the Bill of Rights— to
declare certain values transcendent, beyond the
reach of temporary political majorities.
We current Justices read the Constitution in the
only way that we can: as 20th century
Americans. We look to the history of the time of
framing and to the intervening history of
interpretation. But the ultimate question must be,
what do the words of the text mean in our time.
For the genius of the Constitution rests not in
any static meaning it might have had in a world
that is dead and gone, but in the adaptability of
its great principles to cope with current problems
and current needs.
30
How to read the Constitution
Clarence Thomas Wall Street Journal. Oct 20, 2008
The following is an excerpt from Supreme Court Justice Clarence Thomas's Wriston Lecture to
the Manhattan Institute last Thursday:
When John F. Kennedy said in his inaugural address, "Ask not what your country can do for you -- ask
what you can do for your country," we heard his words with ears that had been conditioned to receive this
message and hearts that did not resist it. We heard it surrounded by fellow citizens who had known lives
of sacrifice and hardships from war, the Great Depression and segregation. All around us seemed to ingest
and echo his sentiment and his words. Our country and our principles were more important than our
individual wants, and by discharging our responsibilities as citizens, neighbors, and students we would
make our country better. It all made sense.
Today, we live in a far different environment. My generation, the self-indulgent "me" generation, has had
a profound effect on much around us. Rarely do we hear a message of sacrifice -- unless it is a
justification for more taxation and transfers of wealth to others. Nor do we hear from leaders or politicians
the message that there is something larger and more important than the government providing for all of
our needs and wants -- large and small. The message today seems more like: Ask not what you can do for
yourselves or your country, but what your country must do for you.
This brings to mind the question that seems more explicit in informed discussions about political theory
and implicit in shallow political speeches. What is the role of government? Or more to the point, what is
the role of our government? Interestingly, this is the question that our framers answered more than 200
years ago when they declared our independence and adopted our written Constitution. They established
the form of government that they trusted would be best to preserve liberty and allow a free people to
prosper. And that it has done for over two centuries. Of course, there were major flaws such as the issue of
slavery, which would eventually lead to a civil war and casualties of fellow citizens that dwarf those of
any of the wars that our country has since been involved in.
Though we have amended the Constitution, we have not changed its structure or the core of the document
itself. So what has changed? That is the question that I have asked myself and my law clerks countless
times during my 17 years on the court.
As I have traveled across the country, I have been astounded just how many of our fellow citizens feel
strongly about their constitutional rights but have no idea what they are, or for that matter, what the
Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I
am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know
generally what the Constitution says about them. It is at least as easy to understand as a cell phone
contract -- and vastly more important.
The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold
these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to
secure these rights, Governments are instituted among Men, deriving their just powers from the consent
of the governed . . . ."
31
The framers structured the Constitution to assure that our national government be by the consent of the
people. To do this, they limited its powers. The national government was to be strong enough to protect us
from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured
the Constitution to limit the powers of the national government. Its powers were specifically enumerated;
it was divided into three co-equal branches; and the powers not given to the national government
remained with the states and the people. The relationship between the two political branches (the
executive and the legislative) was to be somewhat contentious providing checks and balances, while
frequent elections would assure some measure of accountability. And, the often divergent interests of the
states and the national government provided further protection of liberty behind the shield of federalism.
The third branch, and least dangerous branch, was not similarly constrained or hobbled.
Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final
arbiter of our Constitution. But, what rules must judges follow in doing so? What informs, guides and
limits our interpretation of the admittedly broad provisions of the Constitution? And, more directly, what
restrains us from imposing our personal views and policy preferences on our fellow citizens under the
guise of Constitutional interpretation?
To assure the independence of federal judges, the framers provided us with life tenure and an irreducible
salary -- though inflation has found a way around the latter. This independence, in turn, was to assure our
neutrality and impartiality, which are at the very core of judging -- and being a judge. Yet, this
independence can also insulate a judge from accountability for venturing beyond the proper role of a
judge. But, what exactly is the proper role of a judge? We must understand that before we can praise or
criticize a judge. In every endeavor from economics to games there is some way to measure performance.
As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some
commentators, it seems that if they like or prefer a particular policy or conduct, then it must be
constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this
approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes
something like this. If a judge does not think that abortion is best as a matter of policy or personal
opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is
good policy will find it constitutional. Those who think this way often seem to believe that since this is
the way they themselves think, everyone must be doing the same thing. In this sense, legal realism
morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the
Constitution. . . .
Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best
we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put,
unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in
the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to
the original intent of the framers of our Constitution is flawed, as all methodologies and human
institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
32
The Commandments
Jill Lepore The New Yorker Jan 17, 2011
It is written in an elegant, clerical hand, on four sheets of parchment, each two feet wide and a bit more than two feet high, about the size of an eighteenth-­‐century newspaper but Ciner, and made not from the pulp of plants but from the hide of an animal. Some of the ideas it contains reach across ages and oceans, to antiquity; more were, at the time, newfangled. “We the People,” the Cirst three words of the preamble, are giant and Gothic: they slant left, and, because most of the rest of the words slant right, the writing zigzags. It took four months to debate and to draft, including two weeks to polish the prose, neat work done by a committee of style. By Monday, September 17, 1787, it was ready. That afternoon, the Constitution of the United States of America was read out loud in a chamber on the Cirst Cloor of Pennsylvania’s State House, where the delegates to the Federal Convention had assembled to subscribe their names to a new system of government, “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
Then Benjamin Franklin rose from his chair, wishing to be heard. At eighty-­‐one, he was too tired to make another speech, but he had written down what he wanted to say, and James Wilson, decades Franklin’s junior, read his remarks, which were addressed to George Washington, presiding. “Mr. President,” he began, “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them.” Franklin liked to swaddle argument with affability, as if an argument were a colicky baby; the more forceful his argument, the more tightly he swaddled it. What he offered was a well-­‐bundled statement about changeability. I Cind that there are errors here, he explained, but, who knows, someday I might change my mind; I often do. “For having lived long, I have experienced many instances of being obliged by better Information, or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise.” That people so often believe themselves to be right is no proof that they are; the only difference between the Church of Rome and the Church of England is that the former is infallible while the latter is never wrong. He hoped “that every member of the Convention who may still have Objections to it, would with me, on this occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his name to this Instrument.” Although the document had its faults, he doubted that any other assembly would, at just that moment, have been able to draft a better one. “Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”
Three delegates refused to sign, but at the bottom of the fourth page appear the signatures of the rest. What was written on parchment was then made public, printed in newspapers and broadsheets, often with “We the People” set off in extra-­‐large type. Meanwhile, the secretary of the convention carried the original to New York to present it to Congress, which met, at the time, at City Hall. Without either endorsing or opposing it, Congress agreed to forward the Constitution to the states, for ratiCication. The original Constitution was simply Ciled away and, later, shufCled from one place to another. When City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War OfCice. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-­‐twenties, when someone asked James Madison where it was, he had no idea.
In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement. In 1921, Herbert Putnam, a librarian, drove it across town in his Model T. In 1924, it was put on display in the Library of Congress, for the Cirst time ever. Before 33
then, no one had thought of that. It spent the Second World War at Fort Knox. In 1952, it was driven in an armored tank under military guard to the National Archives, where it remains, in a shrine in the rotunda, alongside the Declaration of Independence and the Bill of Rights.
Ours is one of the oldest written constitutions in the world and the Cirst, anywhere, to be submitted to the people for their approval. As Madison explained, the Constitution is “of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed . . . THE PEOPLE THEMSELVES.” Lately, some say, it’s been thrown in the trash. “Stop Shredding Our Constitution!” Tea Party signs read. “FOUND in a DUMPSTER behind the Capitol,” read another, on which was pasted the kind of faux-­‐parchment Constitution you can buy in the souvenir shop at any history-­‐
for-­‐proCit heritage site. I bought mine at Bunker Hill years back. It is printed on a single sheet of foolscap, and the writing is so small that it’s illegible; then again, the knickknack Constitution isn’t meant to be read. The National Archives sells a poster-­‐size scroll, twenty-­‐two inches by twenty-­‐
nine inches, that is a readable facsimile of the Cirst page, for twelve dollars and ninety-­‐Cive cents. This item is currently out of stock.
Parchment is beautiful. As an object, the Constitution has more in common with the Dead Sea Scrolls than with what we now think of as writing: pixels Cloating on a screen, words suspended in a digital cloud, bubbles of text. R we the ppl? Our words are vaporous. Not so the Constitution. “I have this crazy idea that the Constitution actually means something,” one bumper sticker reads. Ye olde parchment serves as shorthand for everything old, real, durable, American, and true—a talisman held up against the uncertainties and abstractions of a meaningless, changeable, paperless age.
You can keep a constitution in your pocket, as Thomas Paine once pointed out. Pocket constitutions have been around since the seventeen-­‐nineties. The Cato Institute prints a handsome Constitution, the size and appearance of a passport, available for four dollars and ninety-­‐
Cive cents. The National Center for Constitutional Studies, founded by W. Cleon Skousen, a rogue Mormon, John Bircher, and all-­‐purpose conspiracy theorist, prints a stapled paper version, the dimensions of a datebook, thirty cents if you order a gross. I got mine, free, at a Tea Party meeting in Boston. Andrew Johnson, our Cirst impeached President, was said to have waved around his pocket constitution so often that he resembled a newsboy hawking the daily paper. Crying constitution is a minor American art form. “This is my copy of the Constitution,” John Boehner, the Speaker of the House, said at a Tea Party rally in Ohio last year, holding up a pocket-­‐size pamphlet. “And I’m going to stand here with the Founding Fathers, who wrote in the preamble, ‘We hold these truths to be self-­‐evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights including life, liberty and the pursuit of happiness.’ ” Not to nitpick, but this is not the preamble to the Constitution. It is the second sentence of the Declaration of Independence.
At some forty-­‐four hundred words, not counting amendments, our Constitution is one of the shortest in the world, but few Americans have read it. A national survey taken this summer reported that seventy-­‐two per cent of about a thousand people polled had never once read all forty-­‐four hundred words. This proves no obstacle to cherishing it; eighty-­‐six per cent of respondents said that the Constitution has “an impact on their daily lives.” The point of such surveys is that if more of us read the Constitution all of us would be better off, because we would demand that our elected ofCicials abide by it, and we’d be able to tell when they weren’t doing so and punish them accordingly. “This is what happens when our Constitution starts shaking her Cist,” Sarah Palin tweeted in October, about calls for an end to federal funding for National Public Radio, which she charged with violating the First Amendment by Ciring the commentator Juan Williams. “The American people’s voice was heard at the ballot box,” Boehner said on Election Night, and what the American people want is “a government that honors the Constitution.” Rand Paul thanked his parents, in his victory speech, “for teaching me to respect our Constitution.” Michelle Bachmann told ABC News that she plans to offer Constitution classes in the House. Glenn Beck asked his listeners to urge their representatives to join Bachmann’s constitutional caucus. Sharron Angle said that she took comfort in the knowledge that Harry Reid carries a copy of the Constitution in his breast pocket: “We want our senator to remember our Constitution, to read our Constitution, and to 34
consider every bill that he votes for in light of that Constitution.” The Tea Party’s triumph, she said, amounts to this: “We’ve inspired a nation to take a look at that document and begin to read it.” Last week, when new lawmakers were sworn in, the Constitution was read out loud in the House of Representatives. It is the Cirst time this has ever happened.
If you haven’t read the Constitution lately, do. Chances are you’ll Cind that it doesn’t exactly explain itself. Consider Article III, Section 3: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” This is simply put—hats off to the committee of style—but what does it mean? A legal education helps. Lawyers won’t stumble over “attainder,” even if the rest of us will. Part of the problem might appear to be the distance between our locution and theirs. “Corruption of Blood”? The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difCicult for ordinary people to understand—not because of its vocabulary but because of the complexity of its ideas—was brought nearly the minute it was made public. Anti-­‐Federalists charged that the Constitution was so difCicult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-­‐
Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.” Anti-­‐Federalists had more complaints, too, which is why ratiCication—a process wonderfully recounted by Pauline Maier in “RatiCication: The People Debate the Constitution, 1787-­‐1788”—was touch and go. Rhode Island, the only state to hold a popular referendum on the Constitution, rejected it. Elsewhere, in state ratifying conventions, the Constitution passed by the narrowest of margins: eighty-­‐nine to seventy-­‐
nine in Virginia, thirty to twenty-­‐seven in New York, a hundred and eighty-­‐seven to a hundred and sixty-­‐eight in Massachusetts.
Nor were complaints that the Constitution is obscure silenced by ratiCication. In a 1798 essay called “The Key of Libberty,” William Manning, the plainest of men—a New England farmer, a Revolutionary veteran, and the father of thirteen children—expressed a view widely held by Jeffersonian Republicans: “The Federal Constitution by a fair construction is a good one prinsapaly, but I have no dout but that the Convention who made it intended to destroy our free governments by it, or they neaver would have spent 4 Months in making such an inexpliset thing.” Franklin called the Constitution an “instrument”; he meant that it was a legal instrument, like a will. Manning thought that it was another kind of instrument: “It was made like a Fiddle, with but few Strings, but so that the ruling Majority could play any tune upon it they please.”
For all the charges that the Constitution was difCicult to understand, between 1789 and 1860 only one state, California, required that it be taught in school. The Cirst textbooks examining the Constitution weren’t printed until the eighteen-­‐
twenties, and they were for law students. Three volumes of “Commentaries on the Constitution,” written by Supreme Court Justice Joseph Story, appeared in 1833. The next year, Story published an abridgment for schools, explaining that the Constitution “is the language of the People, to be judged of according to the common sense, and not by mere theoretical reasoning.” That may be, but Story’s schoolbook is a hundred and sixty-­‐six pages of close legal argument.
You can’t explain a thing without interpreting it. Story, a Northerner and a nationalist, emphasized the Supreme Court’s role in arbitrating disputes between the federal government and the states. In those years, the disputes mainly had to do with slavery; Southerners who glossed the Constitution stressed state sovereignty. In 1846, William Hickey published a constitutional concordance. He got the idea from Polk’s Vice-­‐President, George Dallas, who believed the Constitution prohibited Congress from interfering with the extension of slavery into Western territories. The U.S. Senate, over which Dallas presided, ordered twelve thousand copies of Hickey’s pro-­‐slavery vade mecum. It does not appear to have elevated congressional conversation. In 1847, the governor of New York, Silas Wright, observed, “No one familiar with the affairs of our government, can 35
have failed to notice how large a proportion of our statesmen appear never to have read the Constitution of the United States with a careful reference to its precise language and exact provisions, but rather, as occasion presents, seem to exercise their ingenuity . . . to stretch both to the line of what they, at the moment, consider expedient.”
By the middle of the nineteenth century, nearly all white men could vote. Not all of them could read, and not all of them owned a copy of the Constitution, but Daniel Webster insisted, “Almost every man in the country is capable of reading it.” Whether they did or not is hard to say. Some did more than read it. William Lloyd Garrison burned the Constitution at an abolitionist rally in Massachusetts, calling it a “covenant with death, an agreement with hell.” John Brown wrote his own constitution, replacing “We the people” with “We, citizens of the United States, and the oppressed people . . . who have no rights.” It was found on Brown’s body when he was captured at Harpers Ferry. William Grimes, a fugitive slave, had a different idea about what to do with the Constitution: “If it were not for the stripes on my back which were made while I was a slave, I would in my will leave my skin as a legacy to the government, desiring that it might be taken off and made into parchment and then bind the Constitution of glorious, happy and free America.” And then the American people went to war, over their different ways of reading letters inked on parchment and wounds cut into the skin of a black man’s back.
“Find It in the Constitution,” the Tea Party rally signs read. Forty-­‐four hundred words and “God” is not one of them, as Benjamin Rush complained to John Adams, hoping for an emendation: “Perhaps an acknowledgement might be made of his goodness or of his providence in the proposed amendments.” It was not. “White” isn’t in the Constitution, but Senator Stephen Douglas, of Illinois, was still sure that the federal government was “made by white men, for the beneCit of white men and their posterity forever.” What about black men? “They are not included, and were not intended to be included,” the Supreme Court ruled, in 1857. Railroads, slavery, banks, women, free markets, privacy, health care, wiretapping: not there. “There is nothing in the United States Constitution that gives the Congress, the President, or the Supreme Court the right to declare that white and colored children must attend the same public schools,” Senator James Eastland, of Mississippi, said, after Brown v. Board of Education. “Have You Ever Seen the Words Forced Busing in the Constitution?” read a sign carried in Boston in 1975. “Where in the Constitution is the separation of church and state?” Christine O’Donnell asked Chris Coons during a debate in October. When Coons quoted the First Amendment, O’Donnell was Clabbergasted: “That’s in the First Amendment?” Left-­‐wing bloggers slapped their thighs; Coons won the election in a landslide. But the phrase “separation of church and state” really isn’t in the Constitution or in any of the amendments.
A great deal of what many Americans hold dear is nowhere written on those four pages of parchment, or in any of the amendments. What has made the Constitution durable is the same as what makes it demanding: the fact that so much was left out. Felix Frankfurter once wrote that the Constitution “is most signiCicantly not a document but a stream of history.” The difference between forty-­‐four hundred words and a stream of history goes a long way toward accounting for the panics, every few decades or so, that the Constitution is in crisis, and that America must return to constitutional principles through constitutional education. The two sides in this debate are always charging each other with not knowing the Constitution, but they are talking about different kinds of knowledge.
“We’ll keep clinging to our Constitution, our guns, and our religion,” Palin said last spring, “and you can keep the change.” Behind the word “change” is the word “evolution.” In 1913, Woodrow Wilson insisted, “All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientiCic word—to interpret the Constitution according to the Darwinian principle; all they ask is a recognition of the fact that a nation is a living thing.” Conservatives called for a rejection of this nonsense about the “living Constitution.” In 1916, the Sons of the American Revolution campaigned for Constitution Day. In 1919, the National Association for Constitutional Government published some Cifty thousand copies of a pocket edition of the Constitution. (The association’s other publications included an investigation into the inCluence of socialists in American colleges.) In 1921, Warren Harding called the Constitution divinely inspired; it was 36
Harding who ordered the Librarian of Congress to take the parchment out of storage and put it into a shrine. Soon, the National Security League was distributing free copies of reactionary books written by “Mr. Constitution,” James Montgomery Beck, who was Harding’s solicitor general. “The Constitution is in graver danger today than at any other time in the history of America,” Beck warned.
By 1923, twenty-­‐three states required constitutional instruction and, by 1931, forty-­‐
three. Studying Middletown’s high school in 1929, the sociologists Robert and Helen Lynd found these classes worrying: “70 percent of the boys and 75 percent of the girls answered ‘false’ to the statement ‘A citizen of the United States should be allowed to say anything he pleases, even to advocate violent revolution, if he does no violent act himself.’ ” Still, such instruction was by no means uniformly conservative. The author of an elementary-­‐school textbook published in 1930 wrote, “This Constitution is yours, boys and girls of America, to cherish and to obey, to preserve and, if need be, to better.”
The New Deal intensiCied debate over the nature of the Constitution, a debate whose cramped terms we’ve inherited. “Hopeful people today wave the Clag,” Thurman Arnold, later F.D.R.’s assistant attorney general, wrote in 1935. “Timid people wave the Constitution . . . the only bulwark against change.” Obama supporters wore “HOPE” and “CHANGE” T-­‐shirts; Tea Partiers carry the Constitution. Liberals argue for progress; conservatives argue for a return to the nation’s founding principles. Change is a founding principle, too, but people divided by schism are blind to what they share: one half, infallible; the other, never wrong.
Pop quiz, from a test administered by the Hearst Corporation in 1987.
True or False: The following phrases are found in the U.S. Constitution:
“From each according to his ability, to each according to his need.”
“The consent of the governed.”
“Life, liberty, and the pursuit of happiness.”
“All men are created equal.”
“Of the people, by the people, for the people.”
This is what’s known as a trick question. None of these phrases are in the Constitution. Eight in ten Americans believed, like Boehner, that “all men are created equal” was in the Constitution. Even more thought that “of the people, by the people, for the people” was in the Constitution. (Abraham Lincoln, Gettysburg, 1863.) Nearly Cive in ten thought “From each according to his ability, to each according to his need” was written in Philadelphia in 1787. (Karl Marx, 1875.)
About a quarter of American voters are what political scientists call, impoliticly, “know nothings,” meaning that they possess almost no general knowledge of the workings of their government, at least according to studies conducted by the American National Election Survey since 1948, during which time the know-­‐
nothing rate has barely budged. Critics, including James L. Gibson and Gregory A. Caldeira, have charged that these studies systemically overestimate political ignorance. A 2000 survey asked interviewees to identify William Rehnquist’s job. The only correct answer was “the Chief Justice of the United States Supreme Court.” Answers like “Chief Justice,” “Justice,” “Chief Justice of the Court,” and anything breezier (“a Supreme Court judge who is the head honcho”) were marked incorrect. Why the ability to name Rehnquist’s job is necessary to good citizenship is never made clear. Those surveys seem to have had a point to prove—they have been used to argue, for instance, that the public ought not to play a role in electing or selecting judges—as did surveys conducted during the Cold War which appear to have been designed to elicit the headline-­‐generating news that Americans are so ignorant of the Constitution that they can be gulled into confusing it with Marxism. “Americans have known the Constitution best when they have revered it least,” Michael Kammen wrote, in an extraordinarily rich and rewarding history of the Constitution, published in 1986. The Hearst report reached quite a different conclusion: “Those Americans who are most knowledgeable about the Constitution are the least likely to support changes.” In 1985 and 1986, Reagan’s Attorney General, Edwin Meese, made a series of speeches advocating originalism. Reagan nominated Antonin Scalia to the Supreme Court in June of 1986. The Hearst survey was conducted that fall and released in February of 1987. That May, Thurgood Marshall said, in a bicentennial address, “I do not believe that the meaning of the Constitution was forever ‘Cixed’ at the Philadelphia 37
Convention.” That July, Reagan nominated Robert Bork to the Court, and, despite the failure of Bork’s nomination, originalism never looked back.
Last February, Meese and a coalition of prominent conservatives, including leaders of the Heritage Foundation, The National Review, and the Federalist Society, met in Virginia to sign “The Mount Vernon Statement.” It calls for a coalition of social, economic, and national-­‐security conservatives to return the nation to the principles stated in its founding documents, now “under sustained attack” in “our culture, our universities and our politics”: “The self-­‐evident truths of 1776 have been supplanted by the notion that no such truths exist. The federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant.” The Mount Vernon Statement was modelled on the Sharon Statement, signed in 1960. The threat to the Constitution, in the Sharon Statement, was a “menace,” and it came from “the forces of international Communism.” In the Mount Vernon version, the threat is “change”: change is “an empty promise” and “a dangerous deception,” and it comes from the American people—that is, from those of us who are to be found in the nation’s universities and the federal government. The Sharon Statement was signed in William F. Buckley, Jr.,’s home, in Sharon, Connecticut. The organizers of the Mount Vernon Statement wanted to meet at Mount Vernon, but the Mount Vernon Ladies’ Association turned them down. Still, the statement was printed on fake parchment, and a guy dressed up as George Washington handed out Sharpies.
Originalists argue that originalism is the only faithfully democratic mode of constitutional interpretation. Laws are passed by the elected representatives of the people; the courts protect the will of the people by making sure those laws adhere to the Constitution, as originally drafted and popularly ratiCied. Any other mode of jurisprudence is overstepping, and amounts to an abuse of judicial power because it favors the rulings of unelected judges—the caprice of contemporary courts—against the will of the people, as embodied by the Constitution.
Liberal legal scholars have tried different approaches in countering this argument. One has been to point out that the American people whose will originalism protects are dead, and that, even if they weren’t, they aren’t us. “If democratic legitimacy is the measure of a sound constitutional interpretive practice,” the Columbia law professor Jamal Greene has written, “then Justice Scalia needs to give an account of why and how rote obedience to the commitments of voters two centuries distant and wildly different in racial, ethnic, sexual, and cultural composition can be justiCied on democratic grounds.”
Another approach has been to argue that originalism, so far from being original, in the sense of being the same age as those four sheets of parchment in the National Archives, is quite modern. Consider the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Historical evidence can be marshalled to support different interpretations of these words, and it certainly has been. But the Yale law professor Reva Siegel has argued that, for much of the twentieth century, legal scholars, judges, and politicians, both conservative and liberal, commonly understood the Second Amendment as protecting the right of citizens to form militias—as narrow a right as the protection provided by the Third Amendment against the government’s forcing you to quarter troops in your house. Beginning in the early nineteen-­‐seventies, lawyers for the National RiCle Association, concerned about gun-­‐control laws passed in the wake of the assassinations of Martin Luther King, Jr., and Robert F. Kennedy, argued that the Second Amendment protects the right of individuals to bear arms—and that this represented not a changing interpretation but a restoration of its original meaning. The N.R.A., which had never before backed a Presidential candidate, backed Ronald Reagan in 1980. As late as 1989, even Bork could argue that the Second Amendment works “to guarantee the right of states to form militias, not for individuals to bear arms.” In an interview in 1991, the former Chief Justice Warren Burger said that the N.R.A.’s interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
The individual-­‐rights argument warrants serious debate. But, instead, on the political stage, people who disagreed with it were accused of failing to respect the Constitution, or of being too stupid to understand it. In 1995, Newt Gingrich wrote, 38
“Liberals neither understand nor believe in the Constitutional right to bear arms.” Who are the know-­‐nothings now? Liberal scholars and jurists. In 2005, Mark Levin, a talk-­‐radio host who worked under Meese in the Reagan Justice Department, wrote that Thurgood Marshall, who had challenged originalism, “couldn’t have had a weaker grasp of the Constitution.” In 2008, the N.R.A.’s argument about the Second Amendment was made law in the District of Columbia v. Heller, which ruled as unconstitutional a gun-­‐control law passed in D.C. in 1968. This decision, Siegel argues, has more to do with Charlton Heston than with James Madison.
In 2004, Larry D. Kramer, the dean of Stanford Law School, argued not against originalism but against judicial review (a power wielded, in recent years, by an originalist Court). Kramer offered another jurisprudence, based on different historical claims: popular constitutionalism. “The Supreme Court is not the highest authority in the land on constitutional law,” Kramer wrote. “We are.” Critics charge that it’s unclear how popular constitutionalism works, but the opposition of white activists to school desegregation, the N.R.A.’s interpretation of the Second Amendment, and Iowans voting out of ofCice judges who supported same-­‐sex marriage would all seem to Cit into this category; and if recent legislation is overturned by an incoming Congress elected by people who believe that legislation to be unconstitutional, that will be popular constitutionalism, too.
Originalism is popular. Four in ten Americans favor it. Not all Tea Partiers are originalists, but the movement is fairly described as a populist movement inclined toward originalism. The populist appeal of originalism overlaps with that of heritage tourism: both collapse the distance between past and present and locate virtue in an imaginary eighteenth century where “the people” and “the élite” are perfectly aligned in unity of purpose. Originalism, which has no purchase anywhere but here, has a natural afCinity with some varieties of Protestantism, and the United States differs from all other Western democracies in the far greater proportion of its citizens who believe in the literal truth of the Bible. Although originalism is a serious and inCluential mode of constitutional interpretation, Greene has argued that it is also a political product manufactured by the New Right and marketed to the public by talk radio, cable television, and the Internet, where it enjoys a competitive advantage over other varieties of constitutional interpretation, partly because it’s the easiest.
An unexamined question at the heart of this debate, then, is how people actually read the Constitution. Many people are now reading it, with earnestness and dedication, often in reading groups modelled on Bible study groups. The Tea Party Express endorses “The Constitution Made Easy,” a translation into colloquial English made by Michael Holler, and available on Holler’s Web site for eight dollars and ninety-­‐Cive cents. Holler studied at Biola University, a Christian college offering a Biblically centered education. Much of his translation, which appears side by side with the original, is forthright. His Article III, Section 3, reads, “Congress will have Power to declare the punishment for treason, but the penalty may not include conCiscating a person’s property after that person is executed,” and, in an end note, he supplies the helpful information that “Corruption of Blood” refers to the common-­‐law conCiscation of the property of executed traitors, which “had the effect of punishing the traitor’s heirs, or bloodline.” Holler’s Second Amendment is less straightforward; he inverts the language of the original, so that it reads, “The people have the right to own and carry Cirearms, and it may not be violated because a well-­‐equipped Militia is necessary for a State to remain secure and free.” Holler is an N.R.A.-­‐certiCied handgun instructor who, in addition to offering courses on the Constitution, sells classes in how to obtain a concealed-­‐handgun permit.
“U.S. Constitution for Dummies,” published in 2009, was written by Michael Arnheim, an English barrister. The book includes a foreword by Ted Cruz, a nationally prominent defender of the death penalty and a former solicitor general of Texas who successfully defended a monument to the Ten Commandments at the Texas State Capitol. More recently, Cruz authored an amicus brief, on behalf of thirty-­‐one states, supporting the anti-­‐gun-­‐
control argument in the District of Columbia v. Heller. Arnheim’s “plain-­‐English guide” translates portions of the Constitution (e.g., “Due process is really just an old-­‐fashioned way of saying ‘proper procedure’ ”), with an emphasis on contemporary controversies, which he frames as battles between “judge-­‐made law” and the proper workings of democracy; the right to privacy, for instance, is an example of judge-­‐made law. Arnheim is not 39
stinting with his views. “In my opinion,” he writes, “same-­‐sex marriage in Massachusetts is unconstitutional, and the other states therefore don’t have to recognize such unions. I am available if anyone wants to take this issue to the U.S. Supreme Court!”
Two more new guides include both scholarly annotations and historical essays. Jack Rakove, a Pulitzer Prize-­‐winning historian from Stanford, has prepared “The Annotated U.S. Constitution and Declaration of Independence.” Rakove wrote an amicus brief in Heller, opposing the position argued by Cruz, but here he goes no farther than to call the evidence for Cruz’s position “tenuous.” Richard Beeman, who teaches history at the University of Pennsylvania, is the editor of a small-­‐
trim, twelve-­‐dollar paperback, “The Penguin Guide to the United States Constitution.” In his commentary on Heller, the laudably equable Beeman summarizes the arguments; shrugs (“The meaning of the Second Amendment is subject to varying interpretations”); and moves on. Both of these excellent guides are valuable and judicious. Neither deCines “Corruption of Blood.”
“I never knew what the Constitution really is until I read Mr. Beck’s book,” a sly critic of James Montgomery Beck once wrote. “You can read it without thinking.” Critics of originalism are in a bind. When ideas are reduced to icons, which, unfortunately, is the ordinary state of affairs, constitutionalism and originalism look exactly the same: the faux parchment stands for both. But originalism and constitutionalism are not the same, and the opposite of original is not unconstitutional. Originalism is one method of constitutional interpretation. Popular originalism is originalism scrawled with Magic Markers, on poster board. The N.R.A. opposed gun-­‐control laws. It argued, at length, and over years, that those laws violated the Second Amendment. Eventually, the Supreme Court agreed. So far, the Tea Party’s passions ignite faster and are stated more simply. A sign at a Tea Party rally in Temecula, California: “Impeach Obama: He’s Unconstitutional.”
The Constitution is ink on parchment. It is forty-­‐
four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—
over more than two centuries. It is not easy, but it is everyone’s. It is the rule of law, the opinions of the Court, the stripes on William Grimes’s back, a shrine in the National Archives, a sign carried on the Washington Mall, and the noise all of us make when we disagree. If the Constitution is a Ciddle, it is also all the music that has ever been played on it. Some of that music is beautiful; much of it is humdrum; some of it sounds like hell. ♦
Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University and chair of
Harvard's History and Literature Program.
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Unit 4--Canon Chapter 13 The Supreme Court
Targets; Knowledge Points; Objectives
TKO--To Know Objectives:
1. What does the Constitution say about the Supreme Court? What did the Founding Fathers think
about the Supreme Court?
2. Discuss the impact Marbury v. Madison (1803) had on Supreme Court authority
3. Know the difference between appellate and original jurisdiction.
4. Know the difference between district, appellate and Supreme courts.
5. What is a plea bargain?
6. Identify the following court room players: plaintiff, defendant, petitioner, respondent.
7. Identify the difference between criminal and civil law.
8. Identify and state the significance of the Solicitor General.
9. Compare and contrast judicial activism with judicial restraint.
10. Discuss the pros and cons of judicial activism and judicial restraint.
11. Define the doctrine of original intent.
12. Discuss the various checks and balances on the judicial branch. Are they effective?
13. Explain the process for appointing federal judges.
14. Identify the qualities and characteristics of judicial nominees.
15. Define docket.
16. Summarize the process by which the U.S. Supreme Court makes its decisions.
17. Identify and state the significance of amicus briefs.
18. Discuss the relationship between the Supreme Court and public opinion.
19. Define the rule of four.
20. Discuss the significance of senatorial courtesy.
21. Why do justices issue written opinions? Identify the types of opinions issued by the Court.
22. Evaluate the importance of stare decisis in judicial decision-making. How is it similar to common
law?
The following Illinois SEL goals will govern our classroom:
1. Develop self-awareness and self-management skills to achieve school and life success.
2. Use social-awareness and interpersonal skills to establish and maintain positive relationships.
3. Demonstrate decision-making skills and responsible behaviors in personal, school, and
community contexts.
Additionally the following values will be nurtured in all citizens entering this academic arena:
Self Discipline; Compassion; Responsibility; Friendship; Work; Courage; Perseverance; Honesty;
Loyalty; Faith
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2nd Mid-Term Review Guide
AP American Government and Politics
Stevenson High School. 2011
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Identify which demographic groups vote consistently for the Democratic Party? Which demographic group
votes most consistently for democrats.
Identify which demographic groups have the highest voter turnout.
Explain the relationship between socioeconomic status and participation in politics?
Explain the relationship between increasing suffrage rights since 1970 and voter turnout.
Discuss voter turnout patterns in American today.
Discuss the type of voters that vote in primaries compared to those that vote in general elections.
Explain the significance of ‘split-ticket’ voting.
Define referendum.
Define political efficacy.
Explain the significance of political socialization.
Identify the most common form of political activity.
Identify which positions (i.e. President, Supreme Court) registered voters directly elect.
Identify the most important influence on the choice made by voters in presidential elections.
Identify the primary function of PACs.
PACs representing which groups have grown most substantially since the 1970s.
Define public monies.
Explain the significance of the Bipartisan Campaign Reform Act of 2002.
Explain the significance of the incumbency advantage.
Discuss the main difference between political parties and interest groups.
Define single member district.
Explain the significance of front loading.
Define open and closed primary.
Discuss the changes that have occurred in the presidential nominating process over the past three decades.
Define party machine.
Explain the significance of critical elections and party realignment.
Explain how the winner take all system fosters a two party system.
Discuss the causes of weakened political parties.
Define plurality election.
Explain the significance of judicial activism.
Explain the significance of judicial restraint.
Define the doctrine of original intent.
Discuss checks and balances on judicial power.
Discuss the process for appointing federal judges.
Identify the most important source of the Supreme Court’s caseload.
Explain the significance of amicus briefs.
Discuss the relationship between the Supreme Court and public opinion.
Discuss the Supreme Court’s actions with respect to disputes between Congress and the President.
Define the rule of four.
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