STUDYING THE U.S. CONSTITUTION

A. DISTINCTIVE ASPECTS OF U.S. JUDICIAL REVIEW 1. Once in office, all federal Article III judges are insulated from political pressures on continued employment or salary reduction, short of the drastic step of impeachment. 1 2. Politics and law are not easily separated in U.S. constitutional method. 2 3. Many provisions of the U.S. Constitution are law, in the sense that they are enforceable by the courts. 3 The power of the courts to enforce the constitution is often referred to as the power of judicial review. It means that judges can examine governmental actions for compliance with the U.S. Constitution and declare void and refuse to enforce those actions that they hold to violate the Constitution. 4. The U.S. judicial review power is de-centralized. Nearly all levels of state and federal courts have the power of constitutional review: it is not centralized in a constitutional court. 4 5. The U.S. judicial review power is substantive. The power goes beyond ensuring compliance with procedural requirements to the actual content of the government actions in question. 5 6. The U.S. judicial review power has universal effect: the rulings bind other organs of government. 6 7. The U.S. judicial review power is supreme. The U.S. Supreme Court decisions on the U.S. Constitution are supreme over the decisions of the highest court of any state. 8. The U.S. judicial review power is concrete. The courts may not rule on a question concerning whether proposed legislation would be constitutional posed by the legislature on. The power is exercised solely in the context of concrete, live cases and controversies. 7 9. The Constitution frequently has an impact upon ordinary law. For example, a dispute about whether a newspaper committed libel under state tort law can involve a decision about whether the first amendment of the U.S. Constitution protects libel defendants to some extent when writing about public figures. 8 Whether the local police are liable for 1 U.S. CONST. art. III, 1; art. II, 4. 2 See Marbury v. Madison, 5 U.S. 137 (1803). 3 Id. 4 Id. 5 Id. 6 Id. 7 U.S. CONST. art. III, 2. 8 New York Times v. Sullivan, 376 U.S. 254 (1964). 1

shooting someone fleeing the scene of a crime (generated under state law), may be determined by the fourth amendment to the U.S. Constitution. 9 10. Federal court determinations under the U.S. Constitution (and laws) bind local and state courts; that is, they are supreme and in this sense limit state sovereignty. 10 11. Because of Core Distinctives 3-9, the U.S. Constitution and the U.S. Supreme Court have had a dominating influence on the development of law in the U.S. an influence that is nearly unique among legal systems. B. HOW TO BRIEF A U.S. CONSTITUTIONAL CASE BRIEFING A U.S. CONSTITUTIONAL LAW CASE i A brief is a written breakdown or analysis of the parts of a judicial opinion or case. It helps a student or lawyer understand a case. Students use briefs for classroom discussion in U.S. law schools and for their own notes. Students, lawyers and judges use briefs to compare and contrast cases and to synthesize cases into applicable rules as they analyze a legal problem. The typical components of a Supreme Court constitutional law case brief are: A. Style of the Case: This is the case name, made up the parties before the court; the case citation; the court that decided the case; and the year in which the case was decided. The numbers under the case name are the citation: the first indicates the volume number of a book that reports court opinions in which the opinion can be found; the second indicates the page number on which the opinion begins. The reporters that publish United States Supreme Court opinions are indicated by the abbreviations: U.S., S. Ct. and L. Ed. At the trial level, the first party named is generally the plaintiff and the second is the defendant; at the court of appeals level, the first is often but not always the appellant (the party who took the appeal), and the second is the appellee; in Supreme Court cases, the first party is generally the petitioner (who seeks Supreme Court review), and the second is the respondent. B. Facts: These include narrative and procedural facts. Narrative facts are the essential background facts that describe what happened before the parties ended up in court, and explain why they ended up in court. The facts that the court employs in its resolution of the legal issues are often the essential narrative facts. The procedural facts are the procedural events that shaped the lawsuit and the way it is presented to the deciding court: Who sued whom? For what? In what court? In Supreme Court opinions, these facts also include who lost in the trial court and on appeal and why. The procedural facts that figure prominently in the court s resolution of the legal issues will be essential procedural facts to include in a brief. 9 Tennessee v. Garner, 471 U.S. 1 (1985). 10 See Martin v. Hunter s Lessee, 14 U.S. 304 (1816). 2

C. Issue(s): The issue is the legal question the court must decide to resolve the dispute between the parties in a particular case. To find the issue, you have to identify the rule of law that governs a dispute and the key facts of the dispute. When you write an issue, use the language of the constitutional text as closely as possible. D. Holding(s): The holding is the court s decision on the question that is before it. It provides the answer to the question asked in the issue statement. It can be a simple yes or no. If it is a statement, it should include both the material facts and the rule of law that comes from the decision. A broader statement of the rule of law or ratio decidendi is often and confusingly also called a holding. You can include both, but do not neglect the fact + law version. If there is more than one issue, there may be more than one holding. E. Reasoning: The reasoning or rationales that explain the court s decision. For the lawcentered type of issues that the Supreme Court decides, the constitutional text will be important, as will the history of the writing of the text, the understanding of the textual language among the founding generation, and the understanding of it in judicial case precedent and the precedents of executive action and legislation. Constitutional principles and norms will be important, as will social, political and economic consequences of various holdings. For example, the Court may look at two lines of case authority on a constitutional issue and decide in favor of one as the correct reading of the Constitution, or decide the type of case before it is more like the cases in one line of authority than the other; or it may interpret the Constitution for the first time in a new context, using the text, the history of the text, case precedents, constitutional norms and policy. F. Judgment: The judgment indicates the action to be taken as a result of the court s holding(s) on the issue(s). Sometimes it is stated with the holding. In a Supreme Court opinion, because it is an appellate court opinion, the judgment usually will be affirmance, upholding the decision below; reversal, rejection of the decision below; or remand, return of the case to the lower court or agency for further findings of fact or other resolution consistent with the Supreme Court holding(s). C. USING THE PARTS OF A JUDICIAL OPINION A judicial opinion has several functions in U.S. law. First, it decides the dispute between the litigants. Second, it establishes a precedent to guide decisions in future cases with similar facts in courts of the same jurisdiction. The United States Supreme Court will generally follow its precedents under the principle of stare decisis (Latin for let the decision stand ). Lower courts must follow under the doctrine of precedent: decisions of higher courts in similar cases in the same jurisdiction are binding. Finally, a case not only decides a particular dispute and guides decisions in similar cases, but its reasoning may also establish or modify a general principle or rule of constitutional law applicable to future cases. 3

1. HOLDING, DICTA AND THE IMPACT OF AN OPINION Briefing cases helps an attorney not only understand each particular case and how it decided a dispute, but also to analyze the impact of the opinion on future cases. A lawyer needs to know what a particular case held or how it reasoned not only to understand the case itself, but also to understand the relationship between that case and others. A case precedent may have a direct, controlling impact on future legal cases, as is the case when a Supreme Court holding in a case is legally and factually analogous to a current problem. To carefully assess the impact of an opinion as a precedent for future cases, judges and attorneys distinguish a judicial holding from dictum. A statement in a judicial opinion that is not necessary to resolve the actual issue before the court is called dictum, or dicta in the plural. Dicta may be discussion about the outcome under facts different from those before the court or under an issue not before it. Dicta are not binding on a court in the next similar case; they do not need to be followed under the principle of stare decisis. We will see in the cases we read, however, that dicta may influence future decisions. The reason for giving greater authority to holdings than dicta is that courts are most to be trusted when they decide particular disputes. Because they are aware of the relevant facts and the possible competing legal positions that have been argued at length by lawyers, their decisions are more reliable than are their passing comments on peripherally related subjects. 2. FORMULATING A RULE FROM AN OPINION A judicial opinion may also have an indirect impact, through its effect as precedent on a group of similar cases that together make up the rule or doctrine applicable to factually analogous, current problems. Therefore, attorneys read an opinion not only to discover its particular holding on the problem before the court and compare it to a current, similar problem, but also to see if they can formulate a rule from it that is more broadly applicable to other cases, or reformulate a rule that the opinion modified. Sometimes the rule of the case will be called the holding of the case. In contrast to the holding discussed previously, which focused on the facts of the case, this sense of holding is often called a broad statement of the holding or the ratio decidendi. Judicial opinions don t make it easy to determine the rule of the case. While judges discuss the principles of law they use to resolve the dispute, they may not clearly articulate the impact of their decision on those principles. Indeed, the impact of one case on the law may have to be discerned from several later opinions that discuss and apply it, sometimes using different language. To discern the probable impact of the opinion on the rules of law it applied, the lawyer has to try to get inside the opinion author s head, determine what principles the author applied to reach the result, and predict how these principles could function in the future. To formulate a rule from a case it is helpful to distinguish three things: 1) the pre-existing rule of law a court applies in its reasoning, 2) the holding of the case, and 3) the rule a lawyer may take from the case. An opinion frequently begins its reasoning by stating a rule in this 4

course, the rule will usually be from the text of the Constitution and/or a general principle from a synthesis of earlier cases with similar facts. The Court then applies that rule to the material facts of the pending case to reach a holding. When a reader recognizes the holding and how the court got there, he or she knows more about the rule applied and what it means than he or she did before the court issued that opinion. The rule that a reader takes from the case is not just the preexisting rule the court initially recited or applied, but the modified rule the rule modified by the new information about it that a reader can glean from the opinion s holding and reasoning. When they read an opinion to see its effect on the legal rules, U.S. lawyers are primarily interested in formulating the modified rule: it is the rule of law that the Supreme Court and lower courts will apply to similar cases in the future. 3. REASONING BY ANALOGY TO AN OPINION 11 When the Justices of the U.S. Supreme Court rationalize and justify their case decisions in written, published opinions, they use principles and norms in the text and structure of the Constitution and also principles and rules adopted by the Court to interpret the Constitutional text in earlier, similar cases. The latter principles are considered binding on the Court in a new and similar case by deference to the principle of stare decisis (Latin for let the decision stand. ). Therefore the Court, and the attorneys practicing before it, search earlier, similar cases for definitions, rules and principles that should guide a pending case. Lawyers and judges of lower courts do a similar search when they must argue or decide a pending case. Lower courts are bound by similar U.S. Supreme Court decisions by the doctrine of precedent. When the Court itself, lower court judges and lawyers read a Court opinion for its direct impact on pending problems, they reason by drawing analogies between many important facets of their problem case and the precedent case. By comparing their pending problem to decided cases, lawyers decide how the decisions in previous cases apply to the new problem. If the problem and the prior case resemble each other in important ways, such as by their relevant facts, then they are analogous -- and that means they should also resemble each other in their outcome. Cases are analogous if they are alike in ways that are important to their outcome and if the differences between them are not enough to destroy that analogy. Facts are not the only important element used to determine whether a precedent case is analogous to a problem situation. The applicable rule of law should also be similar, so that the issue the court dealt with is the same or similar in both key facts and rule of law applicable to the issue in the problem. The court=s reasoning in the precedent case should apply equally well to the problem case. 11 Adapted from Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans, Writing and Analysis in the Law 30-38 (2 nd ed. 1991). 5

If the cases are different in important facets and the decision in the precedent case therefore should not control the outcome in the pending case, the precedent is called Adistinguishable.@ A distinguishable case does not control a subsequent case, or its impact is restricted. One distinguishes a precedent case by establishing that the differences in the facts require that the court apply a different rule. Or one may decide that the same rule should be applied, but that the facts require a different outcome. One must be careful not to distinguish cases too easily. Each case will have some differences from other cases. The distinguishing facts must be significant. By comparing and contrasting a pending fact situation with precedent, the Justices of the Supreme Court determine how well the rules of prior cases fit the new case they must decide. When lawyers-or you-do this, you are more able to predict the probable outcome of a pending case. The system of precedent allows for gradual change, however; therefore, no prediction can be certain. When one reasons by analogy, one can only offer probable proof for a conclusion, not certainty. The skill is to assess all the possible applications of the relevant rules and to weigh the possible outcomes in order to offer the best prediction. a. FACTS 4. APPLYING PRECEDENT In case briefing, the facts to include are those that are relevant to the issue and to the reasons given by the court for the holding. In applying a precedent, as when briefing a case, one must first determine which facts are relevant to the issue and to the reasons for the decision. However, to consider the relationship between a precedent and a problem case, one views the facts somewhat differently than in case briefing. The facts of an earlier case need not be identical to the facts of another case or a problem for the earlier case to be analogous. A case can be relevant precedent when its facts are similar to the problem case facts according to certain general classifications or factors. The factor provides a basis on which to draw an analogy between cases. An analogy could be drawn between a case in which a state official refuses to give unemployment benefits to a person who was fired because she would not work on her Sabbath and one in which a state official convicted Amish parents of middle school aged children for not having them enrolled in school when their religion specified practical, apprentice type schooling at that age. Although factually distinct, both sets of facts fit under the general classification of a religiously motivated action being burdened. And an analogy could be drawn because both involved regulations that were uniformly applicable, regardless of religion: rules on unemployment benefit eligibility and a truancy law. On the other hand, under another factor these cases could be distinguishable. An individual hearing on eligibility for government benefits is routine in the first type of case, involving unemployment compensation payments. It is not in the other, in which a state statute is simply to be universally obeyed and violators are prosecuted and fined. If the administrative ease of determining exceptions to uniform rules is the relevant factor, the cases are distinguishable. 6

b. ISSUES AND HOLDINGS For a case to be controlling precedent for a subsequent, pending case, the issue should be essentially the same as the one in the new case. However, sometimes the issue or the holding in the precedent case can be defined narrowly, so that no comparison is possible; or it can be phrased more broadly, in which case it may be significant for a pending problem or issue. How one formulates an issue or a holding depends on how many facts one includes as essential and how one characterizes those facts. If a lawyer describes the facts exactly as they were in the case, then the holding will be very narrow. This is sometimes called limiting a case to its facts. Its precedential effect will be slight. If one describes the facts more broadly, the holding can apply to a larger number of future cases whose varied facts nevertheless come within that broader description. For instance, the Marbury v. Madison opinion can be read narrowly in regard to the Supreme Court s power to declare legislation enlarging its constitutionally granted original jurisdiction unconstitutional; or it could be read more broadly, to establish the principle of judicial review of the constitutionality of the actions of other branches. The holding in United States v. Reynolds, which denied relief to a Mormon man charged criminally with polygamy, could also be read narrowly or broadly. In this case, the narrower reading would be consistent with expanded judicial power and the broader one would not be. The case holding could relate only to criminal laws about polygamy. Or it could give a broader rule about religion and the criminal law. Or it could be a very broad principle against judicially creating exemptions for religion from any generally applicable law. The Court that decided Sherbert v. Verner in 1963 may have read it in one of the first two ways mentioned; the Division of Employment v. Smith Court read it in the last way. In this instance, the broader formulation restricted judicial protection of religious freedom much more. The way a precedent case=s holding or issue is formulated may depend on the result the lawyer or judge wants to reach in applying that case to a problem case. If the decision in a precedent case is favorable to the client=s case or the result the judge wants to reach, a lawyer or judge may formulate the holding broadly, so as to include the facts of the pending case. If the decision in the precedent case is unfavorable, one will try to state the holding more narrowly, so that it does not include the facts of the present case. c. REASONING/POLICY The court=s reasoning in the precedent case should apply equally well to the facts in a pending case for it to be a controlling precedent. This is almost certain if the facts are very similar. An advocate might well have thought the strict scrutiny type of judicial reasoning used in Sherbert would be used in another case of denial of unemployment compensation benefits as a result of religious exercise. This would normally be good legal reasoning especially for a lower court. But the Court was ready to make a significant change in the law, so it was not successful reasoning in Smith. 7

The same reasoning may apply in different contexts. The Smith reasoning on the need to limit judicial interference with legislation or executive action on the basis of religion may apply not only to criminal drug laws, but also to laws barring headgear in schools. A policy type reason like the need to treat those who engage in minority religious practices so they are not disadvantaged compared to those who follow majority religious practices -- may work effectively in factually distinct cases and be the basis for predicting similar outcomes. Again, this will work with greater regularity in the lower courts than in the Supreme Court. It can cease to be persuasive in a new context; or it simply may be rejected, as the treatment of Sherbert by the Smith Court indicates. 5. USING SEVERAL JUDICIAL OPINIONS TO SYNTHESIZE THE LAW Adapted in part from Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans, Writing and Analysis in the Law 46-49 (2nd ed. 1991). There is rarely only one case precedent relevant to a U.S. constitutional law problem. Often there is a line of relevant cases, which when read together create a principle or a rule or doctrine. To use several cases to resolve pending issues, lawyers and judges relate the cases to each other, or synthesize them into coherent doctrine. In this way, they thoroughly understand the area of law and they produce a synthesis of it that they can then use as the governing law for the analysis of a pending problem. Frequently, in reading opinions you will see legal propositions stated and followed by a string of citations to cases or other legal authorities. Usually these propositions have evolved as the Court has read the decisions of many related cases. The judges inductively produce these statements from analyzing each case and then combining the separate rules from each case into a coherent statement of the general principles in an area of law. These general principles are expressed at a level of abstraction that encompasses the particular holdings of all of the individual cases. The Court has synthesized governing rules or principles to apply to the pending case. An example is the Wisconsin v. Yoder opinion. The Court states: The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. 406 U.S. 205, 214 (1972). Immediately after that statement follows citation to three cases: E.g., Sherbert v. Verner, 374 U.S. 398 (1963); McGowan v. Maryland, 366 U.S. 420 (1961) (separate opinion of Frankfurter, J.); Prince v. Massachusetts, 321 U.S. 158 (1944). The Court is telling the legally educated reader that it has drawn the proposition it stated prior to the citation, and upon which it relies to decide the pending case, from the cited cases. The two statements preceding the citations above contain the Court s synthesized rule. They include first, a general rule, that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. Yoder, 406 U.S. at 214. In the next sentence, the Court begins to apply that rule to the Yoder case facts, 8

calling it well settled. Id. The Court says that even if the state of Wisconsin s interest in universal compulsory education is very strong, in light of a legitimate free exercise claim, it is not absolute. For the state to prevail, its interest must overbalance the free exercise claim by being shown to be of the highest order and... not otherwise served. Id. To complete some of your research and writing assignments, you will need to synthesize cases into rules, as attorneys in practice do and as the Court did in the Yoder case. Begin by reading and briefing one case at a time. To synthesize, you need not only to have broken each opinion into parts, as for the case brief, but also to group and combine the opinions into coherent legal propositions. Take clues from the synthesis given you by the Court in the opinions, giving greatest weight to synthesized rules in the most recent opinions. Several methods of synthesis are possible: 1. Group cases by a rule they each follow; 2. Within a rule, group cases by (or create) analytical categories; 3. Within a rule, group by (or create) component factors of an evolving standard, claim or defense. The first method is the easiest, but applies more to lower courts than to a series of Supreme Court opinions. It may apply, however, if different portions of the Constitution s text are applicable to the different cases, or if a new rule, perhaps overruling an earlier one, is used in some of the cases. An attorney would organize the discussion of the cases according to the rule they use. Within the group of cases using a rule, she might organize by methods two or three. The second method is required when various applications of a legal rule to individual cases have led to different outcomes. A general descriptive category can make sense out of the decisions. For example, if you were studying Supreme Court opinions to learn when the police need a search warrant in order not to violate the 4th Amendment prohibition against unreasonable search and seizure, you would learn the general rule: the police need a warrant if their activity invades a criminal suspect s reasonable expectation of privacy. You might find several cases with varying facts and outcomes: One case held police do not violate the 4th Amendment when they use binoculars to look through windows of a suspect s home; another held no violation when police use dogs to sniff a suspect at an airport. On the other hand, a case held the fourth amendment is violated when police break down the door of a suspect s apartment and ransack her bedroom; another held police violated the 4th Amendment when they knocked on the door, were admitted to his home, and strip-searched the suspect. You will need more than the general rule to make sense of these differing outcomes and diverse facts. For instance, you might explain the outcomes on the basis of an analytical category. You might use the degree of intrusiveness into the suspect s home or person; the first two cases are highly intrusive and a warrant was required; the latter two were less intrusive and a warrant was not required. When you write your synthesis, you would offer this category as a way to explain that the precedent cases use the same rule but have different outcomes, and then you would use it to analyze a pending problem case. 9

The third method is putting together a general principle of law and relevant factors that have evolved over a series of cases. You compare the facts emphasized by the Court in various similar cases, to see if they fit into a category or factor that expands or elaborates on a general rule. The cases may state the factors outright, or they may be implicit, or evolve over a few opinions. When you write your synthesis, you would first identify the factors and explain how they determine the constitutional issue; then you would organize your writing around the factors. For example, when one studies First Amendment cases on religious expression, one will learn that the outright prohibition on prohibiting the free exercise of religion in the constitutional text is qualified by several factors. One will read cases that turn on whether the expression is through speech or worship practices and others that turn on whether the government regulation targeted the religious expression or only affected it more adversely than when applied to similar activities of those not of the religion. In the first instance, one may identify as factors for the rule--whether the freedom claimed is for a practice or for oral and written expression. In the second whether regulatory authority claimed by the state is for uniform application of a general regulation or a regulation of the particular religion or religious activity. To write a synthesis, one would begin discussion of the cases by identification of these factors in the cases and explanation of how they explain the case outcomes. After synthesizing a rule in this way, an attorney will apply it, including each of the factors, to the facts of a pending problem. i By Leigh Hunt Greenhaw. 10