U.S. GOVERNMENT & POLITICS, SPRING 2011

 

SUPREME COURT DECISION MAKING

 

Woll 5 (Tribe and Dorf), 67 (Roche), 70 (Brennan), 71 (Roper v. Simmons)

Friday, March 18

 

Debate over how the Supreme Court should interpret the Constitution often coalesces into two positions:  either a justice should give great weight (perhaps ALL weight) to the Framers’ original ideas (usually termed strict constructionism, judicial restraint, or original intent) or justices/judges are free to interpret the Constitution and other laws as they see fit (usually termed loose constructionism or judicial activism).

 

These positions both oversimplify the reality of the tasks justices face.  Today’s readings offer multiple perspectives on how justices decide cases.  Yet again, we analyze the exercise of power – this time judicial power – in the political context surrounding the Supreme Court.

 

   Tribe and Dorf (Woll 5) try to stake out a middle ground: the Constitution simply does not always contain plain meaning in its words; it is intended as a framework and thus future generations have to interpret it.  This does not mean there are an infinite number of interpretations – the reality lies between the extremes of original intent only and loose constructionism as “anything goes.”  Note that Tribe is considered one of the leading liberal judicial theorists in the U.S. – but his views do not fit the stereotypical liberal perspective.

 

     Roche (Woll 67) reminds readers that Court decisions make policy – the Court’s rulings establish what governments/people/groups can or cannot do. He further notes that the Constitution’s “inspired ambiguity” (382) gives justices latitude.  But exercising self-restraint is the key to the Court’s power and legitimacy, and means the Court is unlikely to rule against a viewpoint held by a large majority of the U.S. public.

 

    Justice William Brennan (Woll 70) served on the Supreme Court for 33 years and is considered one of the best of the politically liberal justices to serve.  Note again his assertion (same as the first two readings) that the Constitution is not crystal clear in its meaning – interpretation is necessary.  Brennan then describes in great detail how justices do their jobs, including some of the rituals used behind closed doors as justices discuss issues and make decisions.

 

In Roper v. Simmons (2005) (Woll 71) the question of whether other sources of law should influence Supreme Court decisions arises.  Justice Anthony Kennedy (still serving today on the Supreme Court, often considered to be its ‘middle’ or swing justice) controversially invokes practices in other nations (among other reasons) to justify his majority argument that the Eighth Amendment does not allow juveniles (17 year olds) to be executed for crimes.  Both dissents (O’Connor and Scalia) strongly disagree with Kennedy’s arguments and highlight how justices can read the same constitutional language VERY differently from one another.

 

 

DECIDING A CASE

Read the case on the back side of this page.  You and a set of classmates will serve as the Supreme Court; all other instructions are on the back side. As you discuss and vote on this case, think about 1) the methods used to decide cases (Wednesday handout) AND 2) ideas about constitutional interpretation and judicial decision discussed in today’s readings.  Be cognizant of how YOU choose to decide this case, and what factors/approaches are most relevant or useful to you.

 

 

SPRINGSTEEN V. ARIZONA

 

Congratulations, you are a Supreme Court justice.  You are free to use any criteria you want to reach a decision on the case below.  The point is to see how a justice's personal views and reliance on the tools available to reach decisions work on the actual Supreme Court.

 

THE BASIC ISSUE:  Freedom of religion -- Constitution, First Amendment:  "Congress shall make no law respecting [creating] an establishment of religion, or prohibiting the free exercise thereof...."

 

CURRENT LAW (EXISTING PRECEDENTS):  There are two key precedents:

 

•           In addition to restricting Congress, the First Amendment is interpreted to mean that state legislatures and local governments also cannot make any law that creates an establishment of religion (in other words, a state-sponsored church or state-sponsored religious activity) (Engel v. Vitale, 1962)

 

•           To determine whether or not a law is acceptable under the Establishment Clause, the Court currently applies the so-called Lemon test (Lemon v. Kurtzman, 1971).  To be considered ok or constitutional, a law must meet three tests:

 

                        •           it must have a clearly secular (non-religious) purpose

                        •           its consequences should be primarily secular (non-religious)

                        •           it should avoid "excessive entanglement" of government with any religious institution (churches, schools, etc.)

 

            The definition of what constitutes "excessive entanglement" is not clear.

 

THE CASE:  An Arizona boy, James Springsteen, is 14 years old and completely deaf.  He has attended public schools, and under federal law, public schools must provide James with a sign language interpreter for all his classes (the school district pays the interpreter’s salary, $8,500 per year).  Now, entering 9th grade, James's parents want to send him to a Catholic high school, and they asked their school district to provide the interpreter in James's new school, still at taxpayer expense.

 

            The school district refuses, arguing that providing the interpreter for James in a private, religious school setting violates the Lemon test -- one example they use is that the interpreter may be asked to sign some religious instruction, not just math or literature.  The Springsteens argue that this is hardly "excessive entanglement" and nearly everything else the interpreter does has nothing to do with religion (first two parts of Lemon test).

 

            The Springsteen family sues the school district, and after the Arizona Supreme Court sides with the school district, the case reaches the U.S. Supreme Court on appeal.

 

It's time for you to decide the case.  You must choose one side or the other (no compromise position); be prepared to justify your decision and the criteria you use to reach it.  Each Supreme Court should vote when you are done discussing; simple majority wins.