Epstein, Constitutional Law for a Changing America, 11e SAGE Publishing, 2023
Solution Manual for Constitutional Law for a Changing America Institutional Powers and Constraints sage
Chapter 1
Lecture Notes Chapter 1: Understanding the U.S. Supreme Court Learning Objectives 1-1 Describe how the Supreme Court decides which cases to hear and how the Court reaches a decision. 1-2 Explain the Supreme Court decision making of legalism which addresses the roles of the law and politics. 1-3 Discuss the Supreme Court decision making called realism which addresses the judges‟ ideologies using different approaches. 1-4 Identify how to conduct research on the Supreme Court.
Chapter Summary This chapter examines the rationale behind the Supreme Court‟s decision on which cases to hear, how a decision is reached, and the role of attorneys in the decision making. The legalistic theories of judicial decision making, the various clauses in Article I of the Constitution which addresses the roles of the law and politics, the realistic theories of judicial decision making, the judicial attitudes and roles, and the various factors that influence judicial decision making are described. The chapter also describes the various locations at which one can access the resources such as reports and opinions of the Court.
Annotated Chapter Outline I.
Introduction: This section provides an insight into the workings of the Supreme Court.
The Court is bound by formal rules and informal norms.
They provide structure to the business of judicial policy making, and they channel and constrain how the Court exercises its power.
The opinions are the product of the justices following an established set of rules and procedures.
II. Processing Supreme Court Cases: This section describes how the Supreme Court decides which cases to hear, how a decision is reached, and the role of attorneys in the decision. A. Deciding to Decide: The Supreme Court‟s Caseload 1. Almost all cases reach the Court under its appellate jurisdiction. 2. The U.S. Supreme Court, the nation‟s highest tribunal, is the court of last resort. 3. How Cases Get to the Court: Jurisdiction and the Routes of Appeal a. Cases come to the Court in one of four ways either:
i.
Epstein, Constitutional Law for a Changing America, 11e SAGE Publishing, 2023 By a request for review under the Court‟s original jurisdiction or
ii.
By three appellate routes: appeals, certification, and petitions for writs of certiorari.
b. Appeal as a matter of right involves issues Congress has determined are so important that a ruling by the Supreme Court is necessary. c. Lower appellate courts can file writs of certification asking the justices to respond to questions aimed at clarifying federal law. d. A request for a writ of certiorari: the litigants seeking Supreme Court review ask the Court to become “informed” about their cases by requesting the lower court to send up the record. 4. How the Court Decides: The Case Selection Process a. The ability to exercise discretion frees the Court from one of the major constraints on judicial bodies: the lack of agenda control. b. The justices follow a set of protocols that they have established over time. c. The rules governing these petitions, known as in forma pauperis briefs allow indigents to submit briefs on 8½ in. × 11 in. paper. d. The Court adheres to the so-called Rule of Four: It grants certiorari to those cases receiving the affirmative vote of at least four justices. e. The Court identifies the cases accepted and rejected on a “certified orders list,” which is released to the public. 5. Considerations Affecting Case Selection Decisions a. Legal considerations are listed in Rule 10, which the Court has established to govern the certiorari decision-making process. b. Three important political factors that influence Court‟s case selection process: U.S. solicitor general (SG), Amicus curiae (friend of the court) brief, and ideology of the justices. B. The Role of Attorneys 1. Written Arguments a. Under the Court‟s rules, the appealing party (known as the appellant or petitioner) must submit its brief within 45 days of the time the Court grants certiorari. b. The opposing party (known as the appellee or respondent) has 30 days after receipt of the appellant‟s brief to respond with arguments urging affirmance of the lower court ruling. c. Rule 24 outlines the material that briefs must contain, such as a description of the questions presented for review, a list of the parties, and a statement describing the Court‟s authority to hear the case. d. The briefs also serve as a permanent record of the positions of the parties, available to the justices for consultation after an oral argument when they decide the case outcome. e. Court rules allow interested persons, organizations, and government units to participate as amici curiae on the merits. 2. Oral Arguments a. In the past, orals were considered important public events, opportunities to see the most prominent attorneys of the day at work. b. The justices can interrupt the attorneys at any time with comments and questions, as illustrated by the exchange between Justice Antonin Scalia and Maureen Mahoney.
Epstein, Constitutional Law for a Changing America, 11e SAGE Publishing, 2023 c. Some observers have questioned the effectiveness of oral arguments and their role in decision making. d. Oral arguments are extremely important because they help justices to clarify core arguments. C. The Supreme Court Decides: Some Preliminaries 1. The Conference a. The Court is supposed to base its decisions on factors other than public opinion. b. Opening up deliberations to press scrutiny might encourage the justices to take notice of popular sentiment. c. General nature of the Court‟s discussions: i.
The chief justice presides over the deliberations.
ii.
They call up the case for discussion and then present their views about the issues and how the case should be decided.
iii.
The remaining justices state their views and vote in order of seniority.
d. The conference provides an opportunity for the justices to size up the positions of their colleagues. 2. Opinion Assignment and Circulation a. Under Court norms, when the chief justice votes with the majority, they assign the writing of the opinion. b. The opinion writer is a critical player in the opinion circulation phase, which eventually leads to the final decision of the Court. c. As justices circulate their opinions and revise them, it is possible that scores of different opinions may be working their way from office to office at any point in time. d. When all of the justices have declared themselves, the only remaining step is for the Court to announce its decision and the vote to the public. III. Supreme Court Decision Making: Legalism: This section describes the legalistic theories of judicial decision making and the various clauses in Article I of the Constitution.
Legalistic theory of judicial decision making focuses on the role of law and legal methods in determining how justices interpret the Constitution, emphasizing the importance of its words, American history and tradition, and precedent.
Realistic theory of judging emphasizes nonlegalistic factors including the role of politics.
Several clauses in Article I of the Constitution contain requirements that all prospective members of Congress must meet: o A senator must be at least 30 years old, and a representative must be 25 years old. o Every member must be, when elected, an inhabitant of the state they are to represent. o Representatives must have been citizens of the United States for at least 7 years; senators must have been citizens for nine.
A. Originalism 1. Original intent asks what the framers wanted to do. 2. Original meaning considers what a clause meant to (or how it was understood by) those who enacted it (or at the time of its enactment).
Epstein, Constitutional Law for a Changing America, 11e SAGE Publishing, 2023 3. The framers acted in a calculated manner, and that if they scrutinize the intent of the framers, justices can deduce “constitutional truths,” which they can apply to cases. 4. This approach seeks to generate value-free and ideology-free jurisprudence by focusing on how the framers defined their own words and then applying their definitions to disputes over those constitutional provisions containing them. B. Textualism 1. Textualism places emphasis on what the Constitution says. 2. Adherents of original intent seek to deduce constitutional truths by examining the intended meanings behind the words. 3. When it comes to the right to privacy such as legalized abortion, some originalists and literalists would reach the same conclusion: It does not exist. 4. If justices looked only at the words of the Constitution, their decisions would not reflect ideological or political values but, rather, those of the document. C. Structural Analysis 1. Structural analysis suggests that interpretation of particular clauses should be consistent with or follow from overarching structures or governing principles established in the Constitution. 2. Structural reasoning does not necessarily lead to a single answer in each and every case. D. Stare Decisis 1. Stare decisis looks to what courts have written about the clause. 2. The rule embodies a wise policy because it is often more important that a rule of law be settled than that it be settled right. E. Pragmatism 1. Pragmatism considers the effects of various interpretations suggesting that courts should adopt the one that avoids bad consequences. 2. Question to be asked in these analyses: a. By what account of values should judges weigh costs and benefits? b. How do they take into account the different people whom a decision may simultaneously punish and reward? F. Polling Other Jurisdictions 1. Polling other jurisdictions examines practices in the United States and even abroad. 2. Polls are useful if we want to know what other judges, now and in the recent past, have thought about the Constitution, writ large or small. 3. Justice Scalia, argued that the views of other nations, however enlightened the Justices of this court may think them to be, cannot be imposed upon Americans through the Constitution. IV. Supreme Court Decision Making: Realism: This section describes the realistic theories of judicial decision making, the judicial attitudes and roles, and the various factors that influence judicial decision making. A. Preference-Based Approaches 1. Judicial Attitudes a. Scholars examining the ideologies of the justices discuss the degree to which a justice is conservative or liberal.
Epstein, Constitutional Law for a Changing America, 11e SAGE Publishing, 2023 b. When a case comes before the Court, each justice evaluates the facts of the dispute and arrives at a decision consistent with their personal ideology. c. From the 1950s through the early 2000s, there is increased conservatism of the Court in economics and civil liberties cases. 2. Judicial Role a. Students of the Court sometimes argue that each justice has a view of their role, a view that is based far less on political ideology and far more on fundamental beliefs of what a good judge should do or what the proper role of the Court should be. b. The proper role of the Court is to assert independent positions in deciding cases, to review the actions of the other branches vigorously, to be willing to strike down acts the justice believes are unconstitutional, and to impose far-reaching remedies for legal wrongs. c. Judicial activism and restraint do not necessarily equal judicial liberalism and conservatism. d. An activist judge need not be liberal, and a judge who practices restraint need not be conservative. e. A limitation of the judicial role approach is that it tells us very little about the resulting policy in a case, just as was true for attitudinal studies. B. Strategic Approaches 1. Justices may be primarily seekers of legal policy or they may be motivated by jurisprudential principles, but they are not unconstrained actors who make decisions based solely on their own ideological attitudes or jurisprudential desires. 2. Rather, justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of other relevant actors, the choices they expect others to make, and the institutional context in which they act. 3. The frequency of vote changes: a. The justices discuss the case and vote on it during the conference deliberations that take place after oral arguments. b. The votes are not final until the opinions are completed and the decision is made public. 4. The revision of opinions that occurs in almost every Court case: a. As opinion writers try to accommodate their colleagues‟ wishes, their drafts may undergo five, 10, or even 15 revisions. b. Bargaining over the content of an opinion is important because it can significantly alter the policy ultimately expressed. C. External Factors 1. Public Opinion a. The president and members of Congress are always trying to find out what the people are thinking. b. The political branches are supposed to represent the people, and incumbents can jeopardize their reelection prospects by straying too far from what the public wants. c. But federal judges are not dependent on pleasing the public to stay in office, and they do not serve in the same kind of representative capacity that legislators do.