Video Notes: U.S. Constitution & Supreme Court

Overview: The U.S. Constitution and Its Evolution

• The U.S. Constitution is celebrated as the world’s oldest written national charter, with endurance rooted in a flexible amendment process that has allowed evolution while preserving core institutional designs.
• The document’s enduring design relies on balancing effective governance with restraints on power.

Road to the U.S. Constitution

• During the Revolutionary War, the Continental Congress acted as a de facto government ( 1774-1781 ) and eventually adopted the Articles of Confederation (ratified 1781).
• Problems under the Articles:
  • No power to tax, causing chronic federal revenue shortfalls.
  • No authority over interstate commerce, leading to protectionist state measures.
  • Unanimous amendment requirement made change virtually impossible.
• These weaknesses spurred calls for a new framework, culminating in the Constitutional Convention of 1787.

Key Milestones (Selected)

• 1776: Declaration of Independence; the colonies proclaim themselves the United States of America.
• 1781: Ratification of the Articles of Confederation (Maryland’s approval).
• 1785–1786: Annapolis Convention (Maryland & Virginia) proposes improvements; Shays’ Rebellion highlights the need for stronger central authority.
• May 14, 1787: Virginia delegation arrives in Philadelphia, begins drafting the Virginia Plan.
• May 29, 1787: Virginia Plan presented — proposes a strong three‑branch government.
• September 17, 1787: Constitution signed by the delegates.
• June 21, 1788: New Hampshire becomes the ninth state to ratify, making the Constitution effective.
• December 15, 1791: Ratification of the Bill of Rights (first ten amendments).

Underlying Principles of the Constitution

• The framers drew on Enlightenment thinkers (Locke, Montesquieu, Rousseau) to craft three interlocking principles:
  1) Separation of Powers / Checks and Balances
  2) Federalism (division of authority between national and state governments)
  3) Individual Rights and Liberties
• These principles are designed to limit tyranny while enabling effective governance.

Separation of Powers & Checks and Balances

• Three independent branches with constitutionally granted powers (Articles I‑III):
  • Legislative (Congress): Core powers include taxation, regulation of commerce, and declaring war (Art. I).
  • Executive (President): Core powers include commander‑in‑chief role, treaty negotiation, and appointment of officers (Art. II).
  • Judicial (Supreme Court & lower courts): Core powers include judicial review and interpretation of statutes (Art. III).
• Typical checks on others:
  • Legislative checks: Override presidential veto; impeach executive and judicial officers.
  • Executive checks: Veto legislation; appoint federal judges; enforce or defer court orders.
  • Judicial checks: Judicial review; interpret statutes; interpret treaties.
• The flowchart view helps visualize mutual dependency: each branch can limit the others to prevent tyranny while enabling governance.

Federalism

• Federalism balances national supremacy with state autonomy:
  • Enumerated powers: Granted to the national government (eg, tax, regulate commerce).
  • Reserved powers: Retained by the states (eg, police powers).
  • Supremacy Clause (Art. VI): Federal law overrides conflicting state law.
• The framers were inspired by Montesquieu’s vision of a compound republic, where local self‑government handles local needs and the national government handles collective security. A famous Madison quote emphasizes that the compound government is self‑explaining and not a direct copy of any single model.

Individual Rights & Liberties

• The original Constitution contained no explicit Bill of Rights; the structure itself was argued to limit government power.
• Anti‑Federalist pressure led to the first ten amendments (1791), which now form the core of civil liberties litigation.
• Debates on rights:
  • Federalist view: Limited powers naturally protect rights.
  • Anti‑Federalist view: Explicit guarantees are needed to prevent abuse.
• Key historical debates:
  • Alexander Hamilton: The Constitution itself is a Bill of Rights.
  • James Madison: Initially skeptical of a separate Bill of Rights, later championed a formal amendment package.
• Montesquieu’s Spirit of the Laws argued that liberty thrives when power is divided—a concept central to both separation of powers and federalism.

The Supreme Court: Processing Cases

• The Court receives thousands of petitions each term but decides only a small fraction (roughly rac{1}{100} ext{ to } rac{1}{50} ext{ in recent terms, i.e., about } 1 extrm{%}).
• The Court’s workflow proceeds through a defined pipeline from petition to decision, explaining why many cases never reach merits.

Steps in the Court’s Workflow

1) Petition for Certiorari: Parties request review; Justices vote to grant or dismiss.
2) Conference: Justices meet privately to discuss petitions and decide which to hear.
3) Briefing: Both sides file written arguments; amicus curiae briefs may be submitted.
4) Oral Argument: Each side presents oral arguments (typically ~30 minutes).
5) Conference (post‑argument): Justices vote on outcome.
6) Opinion Assignment: Most senior justice in the majority assigns the writing.
7) Drafting & Circulation: Majority, concurring, and dissenting opinions are drafted and circulated.
8) Release: The Court publishes the opinion and announces the decision.

• Statistics (2023 Term): approximately 4{,}000+ petitions were filed for cert.

Landmark Supreme Court Cases (Selected)

• 1803 Marbury v. Madison: Established judicial review.
• 1819 McCulloch v. Maryland: Confirmed the Necessary and Proper Clause and federal supremacy.
• 1857 Dred Scott v. Sandford: Denied citizenship to African Americans; intensified sectional conflict.
• 1896 Plessy v. Ferguson: Upheld the separate but equal doctrine (later overturned).
• 1954 Brown v. Board of Education: Declared school segregation unconstitutional.
• 1973 Roe v. Wade: Recognized a constitutional right to privacy in abortion decisions.
• 2000 Bush v. Gore: Resolved the 2000 presidential election and highlighted judicial intervention in politics.

Recent Milestones and the Court Building

• 2015 Obergefell v. Hodges: Recognized same‑sex marriage as a constitutional right.
• 2022 Dobbs v. Jackson Women’s Health Organization: Overturned Roe v. Wade, returning abortion regulation to the states.
• The Supreme Court Building’s architecture embodies core ideals of equal justice under law.

Original & Appellate Jurisdiction

• Original jurisdiction: The Supreme Court can hear certain cases first, such as disputes involving ambassadors or states as parties (Article III).
• Congress has since expanded lower‑court jurisdiction, so original jurisdiction is now mainly limited to state‑vs‑state disputes.
• Appellate jurisdiction dominates the docket: cases come to the Court after lower courts ruled, typically from U.S. Courts of Appeals or state supreme courts.

Paths to Supreme Court Review

• Appeal as a matter of right: Parties in cases deemed important (e.g., constitutional challenges).
• Mandatory review (pre‑1988): Very rare now; only a few per term (e.g., Voting Rights Act cases).
• Certification: Lower appellate courts seek clarification of federal law.
• Petition for certiorari: A discretionary writ; most petitions are denied, but a small fraction are granted.
• Certiorari definition: A discretionary writ by which a party asks the Supreme Court to review a lower‑court decision.

Case Selection Process (How the Court Chooses Which Cases to Hear)

1) Clerk’s office screens petitions for procedural compliance; acceptable petitions receive a docket number.
2) Certiorari pool: Clerks read and memo petitions; pool memos circulate to all justices.
3) Chief Justice’s Discuss List: Cases the chief believes deserve discussion (≈ 20-30 ext{%} of petitions).
4) Conference vote: Four justices must vote to grant cert (Rule of Four).
5) Outcome: Cases on the discuss list are either granted or denied; the rest are automatically denied.

Considerations Affecting Cert Decisions

• Legal (Rule 10): Presence of conflict among federal appellate courts or between federal and state courts dramatically raises the chance of review (≈ 33 ext{%} vs. 1 ext{%} overall).
• Procedural: Justiciability, standing, etc., must be satisfied.
• Political:
  • Solicitor General petitions: grant rate ≈ 70 extrm{-}80 ext{%}.
  • Amicus briefs: Presence (especially multiple briefs) boosts grant probability, even when briefs oppose review.
  • Justices’ ideology: Courts tend to grant review in cases where outcomes conflict with the justices’ preferred direction.
• Rule of Four: Four affirmative votes are required to grant cert.

Role of Attorneys (Briefs & Oral Arguments)

• Merits briefs:
  • Appellant/petitioner files within roughly 45 days of cert grant; appellee/respondent replies within ~30 days.
  • Length limits: ≤ 13{,}000 words; formatting rules apply; electronic filing is mandatory.
• Amicus briefs (at merits stage): Require consent of the parties or a court motion; governments may be exempt from consent.
• Oral arguments:
  • Typically ~30 minutes per side; high‑profile cases may receive extra time (eg, multi‑hour sessions).
  • Justices may interrupt; quality of advocacy can influence votes.
• Oral Argument Impact (research findings):
  • Brennan: Oral arguments clarify core issues and can sway decisions.
  • Johnson et al.: More effective argument correlates with higher win rate.
  • Epstein/Landes/Posner: More questions from justices tend to correlate with losing, signaling skepticism.

Conference & Opinion Assignment

• Private conference: All nine justices participate; the Chief Justice presides, presents a summary, and states the vote.
• Opinion assignment:
  • If the Chief Justice is in the majority, he assigns the majority opinion.
  • If the Chief Justice is in the minority, the most senior justice in the majority assigns.
  • Factors in assignment include workload balance, expertise, and strategic considerations (eg, assigning a moderate justice in a close 5‑4 split).
• Opinion circulation: Drafts circulate; justices may join, suggest revisions, or file concurring/dissenting opinions. The majority opinion typically undergoes 3–4 revisions.

Constitutional Interpretation Methods (Table 1‑1)

• Original intent: What the framers wanted to achieve; the framers would have been shocked by modern developments that alter their original choices.
• Original meaning: How contemporaries understood the text at the time of framing.
• Textualism: Focus on the plain text of the Constitution.
• Structural analysis: Consistency with the Constitution’s overall structures (federalism, separation of powers).
• Example applications (Congressional Term Limits):
  • Original intent: What the framers would have wanted; contexts matter.
  • Original meaning: Textual and historical understanding of qualifications clauses.
  • Textualism: Clauses set minimum standards, not exclusive limits.
  • Structural analysis: State‑added qualifications would erode the democratic structure.

Stare Decisis & Precedent

• Stare decisis: Reliance on precedent; aims for predictability, stability, and guidance.
• Powell v. McCormack: Held that certain qualifications are exclusive, limiting additional state criteria in some contexts.
• Pragmatism: Interpreting law to avoid bad consequences; term limits as an example of balancing consequences.
• Consulting other jurisdictions: Domestic and foreign practices inform interpretation; historically, term limits have seen limited adoption.

The American Court System: Visual Overview

• Federal side:
  • U.S. Supreme Court → 12 Courts of Appeals (including the Federal Circuit and Armed Forces) → 94 District Courts → specialized courts (Claims, International Trade, Veterans, Tax).
• State side:
  • State supreme court (court of last resort) → intermediate appellate courts (≈ 2/3 of states) → trial courts of general and limited jurisdiction (district, juvenile, small claims).

Key Terminology (Glossary)

• Original jurisdiction: Authority to hear a case first, without prior adjudication.
• Appellate jurisdiction: Authority to review decisions of lower courts.
• Certiorari: Discretionary review petition; means to be informed.
• Rule of Four: Minimum of four affirmative votes needed to grant cert.
• Discuss list: Chief justice’s shortlist of cases for conference discussion.
• Amicus curiae: Friend of the court brief submitted by non‑parties.
• Stare decisis: Legal principle of adhering to precedent.
• Originalism: Interpreting the Constitution based on the framers’ intent or the original public meaning.
• Textualism: Interpreting the text strictly.
• Structural analysis: Interpreting provisions in light of the Constitution’s overall framework.
• Precedent: Prior rulings that guide current decision making.
• Stare decisis (Latin): Let the decision stand; a principle of stability in law.
• Notable quotation: The rule of stare decisis embodies the policy that it is often more important that a rule of law be settled than that it be settled right. (Attributed to Justice Harlan F. Stone.)
• Precedents Overruled (1953–2022): A summary of precedents overturned across eras.

The Supreme Court’s Empirical Landscape (Historical Trends)

• Over the last seven decades, the Court overturned approximately 170 precedents (roughly 2.4 per term).
• Empirical findings on precedent:
  • In death‑penalty cases, correct use of precedent predicted outcomes in about 75 ext{%} of cases (n = 64, 1972–present).
  • Similar predictive power observed in search‑and‑seizure cases.
• Limits & critiques of stare decisis:
  • Courts can distinguish, limit, or criticize unloved precedents without formally overruling them (roughly 30 ext{%} of cases).
  • Example: Watkins v. United States (1957) vs. Barenblatt v. Watkins (1959) show narrowing without overt overruling.
  • Distinguishing ratio decidendi (binding principle) from obiter dicta (non‑binding commentary) can be contentious, allowing justices to sidestep unwanted precedent.
• Attitude‑based approaches to interpretation:
  • Attitudinal model: Justices decide based on political ideology (liberal vs. conservative).
  • Early work indicated rising dissent and ideological shifts across eras.

Ideological Voting Patterns (1953–2022)

• Liberal votes—civil liberties vs. economic liberties show shifting patterns across Court eras (Warren, Burger, Rehnquist, Roberts).
• Representative percentages (approximate):
  • Warren: liberal votes ~80% in civil liberties and ~80% in economic liberties.
  • Burger: liberal votes often ≤ 33% in both domains.
  • Rehnquist: liberal votes often ≤ 33% in both domains.
  • Roberts: liberal votes ~40% (civil liberties) and ~50% (economic liberties).
• Cardozo’s maxim on the enduring influence of law captures the idea that tides of public philosophy affect judicial reasoning, even if not determinative.
• Activism vs. restraint:
  • Roberts Court data show substantial voting to invalidate both federal and state/local laws, challenging simple liberal/conservative labels.
• Example: Justice Kagan (liberal) invalidates federal laws as frequently as some conservative justices (Alito, Thomas).

Strategic Approaches in the Court

• Justices act as strategic actors, considering:
  • Preferences of colleagues (coalition building).
  • Institutional context (majority formation, opinion writing).
  • External actors (executive and legislative pressures).
• Vote fluidity: In > 50 ext{%} of cases, at least one justice switches votes between the conference and the final opinion.
• Opinion drafting: Drafts may undergo 5–15 revisions as justices bargain over language and scope.
• Case example: Griswold v. Connecticut (1965) demonstrates how initial rationales on rights can be reshaped to support a right to privacy.

External Factors Influencing the Court

• Public opinion:
  • Appointment link: Justices are nominated by elected officials, linking Court composition to political cycles.
  • Evolving standards doctrine: Standards of interpretation (eg, evolving Eighth Amendment tests) can affect outcomes.
  • Implementation reliance: The Court depends on other branches for enforcement.
  • Empirical counter‑argument: Some scholars find no direct effect of public mood; Court ideology tends to reflect presidential appointments.

Partisan Politics, Amici, and Research Tools

• Partisan politics: Justices often share the ideological bent of the president who appointed them (illustrated by notable cases like Bush v. Gore).
• Interest groups & amicus briefs:
  • Amicus briefs appear in > 90 ext{%} of full‑opinion cases (2000–2019).
  • Notable cases and brief counts: Regents of the Univ. of California v. Bakke (1978) — 58 briefs; Grutter v. Bollinger (2003) — 84 briefs; Dobbs v. Jackson Women’s Health (2022) — 140+ briefs.
  • Purposes of amicus briefs: shape case selection, counterbalance opposing interests, publicize causes (eg, NAACP’s role in Brown v. Board of Education).
• Research & reference tools:
  • Reporters and citations: U.S. Reports (GPO) – Official text, tables of cases, statutes.
  • Lawyers’ Edition (L. Ed.) – Includes per curiam decisions, brief excerpts.
  • Supreme Court Reporter (S. Ct.) – Annotated reports, case indexes, chambers opinions.
  • U.S. Law Week (U.S.L.W.) – Weekly docket, topical indexes, order summaries.
• Digital databases:
  • Supreme Court Database (case‑level data, 1946–present).
  • Cornell LII – Supreme Court texts and resources.
  • SCOTUSblog – Case summaries, briefs, oral argument links.
  • Oyez Project – Audio of oral arguments since the 1950s.
• Visual insight: A line graph shows the percentage of liberal votes in civil liberties (black line) and economic liberty cases (blue line) across the Warren, Burger, Rehnquist, and Roberts Courts, illustrating a general trend toward less liberal voting over time.

Conducting Supreme Court Research (Practical Guidance)

• Locate opinions via reporters or electronic databases (Lexis, Westlaw, LII, SCOTUSblog).
• Use case citations (volume + page) to locate precise locations in reporters.
• For deeper analysis, consult secondary sources:
  • The Supreme Court Compendium (data on voting patterns).
  • Guide to the U.S. Supreme Court (history and case summaries).
  • Oxford Companion to the Supreme Court (encyclopedic entries).
• Practical takeaway: Use a combination of primary opinions and reputable secondary sources to understand precedent, interpretive methodologies, and the Court’s dynamics.