Decision making at the U.S. Supreme Court

Transcription

1 Decision making at the U.S. Supreme Court Street Law s Supreme Court Week 2010 Lesson Plan Contest Winner Written by Brian Zeleny, Towson High School, Towson, MD; edited by Street Law, Inc. Lesson Summary: This lesson is intended for high school students. The main purpose of the lesson is to enrich student understanding of the ways in which Supreme Court justices decide cases. Students review basic information about the Court, and then explore one case and relevant precedents in detail. After listening to oral arguments, students work in groups of justices to decide the case. They then use that decision as a precedent to decide a later case. This lesson is planned for two 85-minute class periods. Pacing: Within the American Government curriculum the lesson should be taught during the Judiciary Branch Unit. The lesson should be sequenced after the students have learned about the different levels of State & Federal Court Systems as well as the structure, ideologies, and powers of the Supreme Court. Before Teaching: This lesson has students listen to audio recordings of oral arguments during Day 1. You will need internet access and speakers, and may want to project the web site, as well. You will also need poster paper and markers for Day 2. This lesson is based on Texas v. Johnson, the case about whether flag burning is a protected form of speech. This case was chosen because it demonstrates how justices apply precedents, particularly when the relevant precedents don t directly address the issue at hand. It shows how justices must weigh competing interests, and demonstrates a variety of influences in judicial decision making. It also demonstrates the path a case dealing with a state law can take to the Supreme Court. You might choose to use a different Supreme Court case in the activity. If so, choose a case that aligns with your course objectives and provides insight into judicial decision making processes. You can find audio of oral arguments for Supreme Court cases since 1955 at Pre-lesson Homework: A day prior to teaching the lesson, assign your students to read Handout 1: Supreme Court Facts and answer the accompanying questions as a homework assignment. The purpose of the homework is to refresh the students on the Supreme Court, including nominations, certiorari, precedent, and the current members of the Supreme Court. Day 1 (85 minutes) Summary: Students will review the homework assignment and then explore the background to Texas v. Johnson. They will then listen to portions of the oral arguments in that case. Information Exchange: (10 minutes) Review the homework assignment Supreme Court Facts with the students. Have several students share their answers with the class. When you get to the question about decision making, record the 1

2 students ideas about things that might influence a judge s decision on the board. Make sure the following things are raised: text of the law or Constitution, history of the law or Constitution, precedent, values, and ideology. Information Application: (25 minutes) Have students review Handout 2: Case Analysis of Texas v. Johnson. The purpose of the reading is to provide students with the case background, constitutional issue, and several possible precedents for the case. Following the student review of the materials ensure comprehension by completing a whole-class review of Handout 2: What are your feelings about the case or issue? Not knowing anything else about the case, do you feel that this case concerns a First Amendment issue? Student answers about the First Amendment issue might include Yes it s related to the freedom of speech Yes it s related to the rights of people to protest No burning the flag is not speech Review the precedents. Note that the Court has held that school children can t be required to salute the flag, and that states can t ban people from saying things that are critical of the flag. Also note that the Court has said that states can ban speech that is intended and likely to cause imminent illegal activity. Ask students about their personal feelings: Should the burning of the flag be considered protected free speech? Listening to Arguments (35 minutes) Have students listen to the audio of the arguments that are presented by the petitioner and the respondent. You will need internet access to complete this part of the activity. Note that Oyez, the web site that provides the audio clips, also offers transcripts. Consider projecting or distributing transcript portions so that students may follow along with the audio. Have students record the arguments for and against utilizing flag-burning as a form of free speech on the T-Chart on page 2 of Handout 2. The audio is available at: Begin by playing the following portions of Texas s arguments in opposed to flag burning as a protected form of speech: 0-6:30 7:30-12:30 22:00 25:30 Next play the following portions of the respondent s (Johnson) arguments that flag burning is a protected form of speech. 25:30-35:07 39:30 46:00 2

3 Homework: Distribute Handout 3 and explain the homework assignment - students should imagine that they are Supreme Court justices and write their own decision for the case of Texas v. Johnson utilizing: The text of the Constitution The precedents The arguments they listed to Their personal values and ideology Day 2 (85 minutes) Summary: Students will form groups of justices to vote on Texas v. Johnson and craft majority and dissenting opinions. They will present their decisions to the class and then decide a follow-up case using a majority opinion as a precedent. Randomly assign students into odd numbered groups. Groups of 5 or 7 may work best. Each group will need a marker and piece of poster paper to complete the assignment for this part of the lesson. Information Exchange: (20 minutes) Have the student s complete activities 1 3 on Handout Students should discuss their individual decisions regarding the case of Texas v. Johnson. Students should discuss the foundations of their decisions, including text of the constitution, precedents, argument, and personal values and ideology. 2. Students should vote either for Johnson or the State of Texas. Then they should record the decision of their court at the top of their poster. 3. Finally, the students in the majority within each group should work together to write the majority opinion. Any students in the minority should work together to write a dissenting opinion. These decisions should be written under the vote on the poster paper. Information Application: (55 minutes) Decision ation (30 minutes) Place the posters on the board and have each student group present their decisions to the class. Applying Precedents (25 minutes) After all of the student groups have presented the main points of their opinions, have the groups return to their seats. Choose one group s opinion to serve as the class precedent. Leave this group s decision posted and remove the other posters. Re-assign each member of the group whose decision was chosen as the class precedent to join another group, where they can serve as a resource on their precedent. Distribute Handout 5: Smith v. Missouri. Tell the students to imagine that three years have passed since Texas v. Johnson. Now, a new case is before the Court. Missouri s state legislature passed a law that bans the violent destruction of any sacred or religious texts. Sue Smith held a rally to protest the construction of a new mosque in her community. At her rally, she burned ten copies of the 3

4 Koran, the holy book of Islam. She was fined for violating the law. She is appealing that decision, arguing that the law violates her First Amendment rights. Tell the students that they should read Handout 5 and discuss the case amongst the group of justices. They will need to apply the class precedent from Texas v. Johnson to decide whether or not Missouri s law violates the First Amendment. After about 20 minutes of work time, call the class back together and ask a couple of the groups to share their decision and reasoning. How did they apply the Texas v. Johnson precedent to this case? Summary/Closing: (10 minutes) Share the Supreme Court s decision in Texas v. Johnson. This summary of the decision comes from Oyez.org: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that [i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Have the students answer the following question in a journal: What influenced your decision in these two cases? What might influence a Supreme Court justice s decisions in a case? Sources: Biographical information from the Supreme Court Website, available at: Lee Arbetman & Ed O Brien, Street Law: A Course in Practical Law, 8 th Edition, The Landmark Cases Website, available at: The Oyez Project, Texas v. Johnson, 491 U.S. 397 (1989) available at: 4

5 Handout 1: Supreme Court Facts Choosing a Justice - All Supreme Court justices are appointed by the President and confirmed by the Senate. Because the justices serve for life, a president s appointment can continue to influence the Court long after that president leaves office. Presidents often try to nominate judges who are most likely to agree with them on important issues that will come before the courts. In some cases, however, a president chooses a nominee that then rules contrary to that president s opinions. Presidents cannot remove a justice from the Court if they don t like their rulings, however. Route to the Supreme Court Almost all cases that come to the Supreme Court are appeals of lower court decisions. Some cases come from the state courts, while others come from the federal courts. Cases in the state court system are tried in the lowest state courts, and can then be appealed to the state s courts of appeals and highest court. Cases in the federal court system all begin in federal district courts. The parties that lose in district court can appeal to the federal courts of appeal. The parties that lose in the federal courts of appeal can ask the Supreme Court to hear their appeal, but the Supreme Court isn t required to hear it. Writ of Certiorari the U.S. Supreme Court is the highest court in the Nation and will not hear just any case. Under its own rules it gets to choose which cases to decide. The process of asking the Court to hear your case is called petitioning for a writ of certiorari. The Supreme Court receives about 8,000 of these petitions each year, and typically chooses to hear only about 80 cases. The Supreme Court will only grant a writ of certiorari if four of the nine justices agree to it. The justices don t need to explain why the choose to hear a case or not, but we know that the following things influence their decision to hear a case: 1. The Court is more likely to take a case if one federal appeals court has decide the issue one way, and another federal appeals court has decided the same issue in another way. This means that the law on that issue is different in parts of the country, and the Supreme Court wants to ensure uniformity in the law. 2. The Court is more likely to take a case if the issue is of great national importance. 3. The Court will sometimes take a case if there has been a flagrant abuse of justice or disregard for accepted legal doctrine. Precedent A precedent is a judicial decision that serves as an authority for deciding future cases with similar questions. Stare Decisis - One principle that the nation s founders adopted from English Common Law was the notion of stare decisis. This principle, meaning let the decision stand, is that every judicial decision should be based on relevant precedents. Judges are very reluctant to overrule earlier decisions because stability and predictability are important to our legal system and the rule of law. However, this can be difficult, because cases don t always align exactly with prior precedents. Judicial Decision-making Justices consider many things when they are deciding a case. They look at the text of the law or the Constitution, as well as the history of the law or Constitutional provision. They might examine the intent of the people who wrote the law, or the public s common understanding of the law s meaning when it was written. Justices look at precedents. Justices might be influenced by the nation s values and ideals, or by their own values and ideals. Many people have different opinions about how judges should make decisions and what they should consider about each case as they make up their minds. 5

6 Demographics of the Current Supreme Court Name Age Race Gender Years on The Court John Roberts 55 Caucasian Male 2005 to Chief Justice Antonin 74 Caucasian Male 1986 to Scalia Anthony 74 Caucasian Male 1988 to Kennedy Clarence 62 African Male 1991 to Thomas American Ruth Bader 77 Caucasian Female 1993 to Ginsburg Stephen 72 Caucasian Male 1994 to Breyer Samuel Alito 60 Caucasian Male 2006 to Sonia 56 Hispanic Female 2009 to Sotomayor Elena Kagan 50 Caucasian Female 2010 to Appointing President George W. Bush Ronald Reagan Ronald Reagan George H.W. Bush Bill Clinton Bill Clinton George W. Bush Barack Obama Barack Obama President s Political Party Republican Republican Republican Republican Democrat Democrat Republican Democrat Democrat Questions to Consider What might influence a Supreme Court justice s decision in any particular case? If you were on the Supreme Court and were going to decide a case about an issue that was important to many Americans, what information would you want before you decided? Why? List one question you have about the operations of the U.S. Supreme Court or the justices. 6

7 Handout 2:Texas v. Johnson: Case Analysis Introduction of the Case: In 1984, Gregory Lee Johnson took part in a demonstration in Dallas, protesting against nuclear weapons, among other things. They marched through the streets shouting. Johnson was carrying an American flag. When he reached Dallas City Hall, Johnson poured kerosene on the flag. Then he set it on fire. While the flag burned, people shouted, "America, the red, white, and blue, we spit on you." No one was hurt, but some people who were there said they were very upset. Johnson was arrested. He was charged with violating a Texas law that said people couldn't vandalize a respected object. He was convicted, sentenced to one year in prison, and fined $2,000. Johnson appealed his case to the Texas Court of Criminal Appeals, which decided in his favor. The court said that the First Amendment protection of free speech included symbolic speech, which is an action that expresses an idea. It said that flag burning was a form of symbolic speech so Johnson could not be punished. The state of Texas wanted to maintain order and to preserve the flag as a symbol of national unity. The State had argued its interests were more important than Johnson s symbolic speech rights. The appeals court did not agree with the State s arguments. The court said the government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol The court also said that the flag burning did not threaten to cause a breach of the peace. The State of Texas asked the Supreme Court of the United States to hear the case, and the Supreme Court accepted. Constitutional Issue Is desecration of the flag protected speech under the First Amendment? 1 st Amendment Congress shall make no law abridging the freedom of speech. Precedents: Brandenburg v. Ohio (1969) - Brandenburg gave a speech at a rally and was convicted under a law that banned advocating various illegal activities. The Supreme Court ruled in favor of Brandenburg, but also held that speech can be prohibited if it is both directed at and likely to incite or produce imminent lawless action. West Virginia v. Barnette (1943) - The West Virginia Board of Education required that all teachers and pupils were required to honor the flag by saluting or be punished. The Supreme Court held that compelling public schoolchildren to salute the flag was unconstitutional. Street v. New York (1969) The Supreme Court held that a State may not criminally punish a person for uttering words critical of the flag. What is your first impression of this issue? Not knowing anything else about the case, do you feel that this case concerns a first amendment issue? 7

8 Listening Activity Listen to the recording of the arguments in the case of Texas v. Johnson. Record the arguments that are made by the attorneys who are arguing for and against flag burning as protected free speech. Arguments against Flag Burning as a protected form of free speech Arguments in favor of Flag Burning as a protected form of free speech 8

9 Handout 3: Written Decision Use this space to write your decision for Texas v. Johnson and explain your reasoning. Remember to include how the precedents, the arguments of the attorneys, and your personal feelings about flag burning and freedom of speech influenced your decision. 9

10 Handout 4: Crafting Opinions Opinion: You and your fellow Justices are being asked to deliver the opinion in the case of Texas v. Johnson Using your knowledge of the decision making process that is utilized by the Supreme Court. Step 1: All members must reflect on the arguments that have been presented by the attorneys. Then all judges discuss the case: the constitutional issue, precedents, and their personal feelings about the case together as a group. Step 2: All justices receive one vote for either the State of Texas (against flag burning as free speech) or for Johnson (for flag-burning as free speech). All votes are done in public and should be recorded by the Chief Justice. Count up the votes to find out the decision of the court. Write the final vote at the top of your poster paper. Step 3: The justices will then work to craft the written opinion of the court. The justices in the majority will work together to combine their opinions into the Majority opinion. The justices in the minority will work together to combine their opinions into the Dissenting opinion. Write the main points of the majority and dissenting opinions underneath the vote on your poster paper. 10

11 Handout 5: Smith v. Missouri Imagine that it has been three years since the Court decided Texas v. Johnson. Now, a new case is before the Court. Facts: Missouri s state legislature passed a law that bans the violent destruction of any sacred or religious texts. Sue Smith held a rally to protest the construction of a new mosque in her community. At her rally, she burned ten copies of the Koran, the holy book of Islam. She was fined for violating the law. She appealed the decision to the state supreme court, arguing that the law violates her First Amendment rights. The Missouri Supreme Court disagreed with her, and ruled that the law did not violate the constitution. They felt that the state s interest in maintaining order and preventing riots outweighed any free speech rights that a person might have to destroy religious texts. Sue Smith appealed the state supreme court s decision to the U.S. Supreme Court. You and your colleagues agreed to hear the case. Now you have gathered to vote on the outcome of the case. Precedent: Texas v. Johnson Summarize the decision that was chosen as the class precedent. Discuss the case of Smith v. Missouri with your group. How is the case of Texas v. Johnson similar to this case? How is it different? How does the class precedent in Texas v. Johnson inform your decision in this case? Have each member of the Court announce their vote in this case and how the precedent informed their vote. 11