April 9, 2019

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/9, we first went over some questions about the Pagnani case brief. We went over the number of issues presented in the case, and also some of the specific differences between the majority and the dissent. Then we went through Lawrence v. Texas. We looked at the fundamental rights/ non-fundamental rights flow chart, and saw how the Court did something surprising. We looked at the characterization of the right, both as Bowers had defined it in 1986, and how the Lawrence Court disagreed with that characterization. I gave the Supreme Court votes in the case, and we went over the differences between a due process challenge versus an equal protection challenge.
The assignment for Thursday 4/11 is to finish you Pagnani briefs, due at the beginning of Thursday's class, and to read in the textbook through p. 77, including Glassford v. BrickKicker.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/9, I distributed three handouts: Assignment #2 (reproduced below); and the Appellant and Appellee briefs in one of the Court's current gerrymandering cases, Rucho v. Common Cause. We first went over the requirements of the assignment. We talked about what the constitution has to say about redistricting (not much, except for the number of seats in the House that each state gets). We talked about packing and cracking in drawing districts to squeeze out the most seats possible. We talked about the North Carolina Republican boast that they got exactly what they re-districted for, 10 House seats out of 13 in a fairly closely divided state, and that there was, in their opinion, absolutely nothing unconstitutional about that. We went over how Maine has avoided much of the redistricting swings, as well as the U.S. Supreme Court decision in Arizona Legislature v. Arizona Redistricting Commission. We also discussed the neutral criteria of contiguity, compactness, geography, and incumbency.
We then turned back to American Legion and the question of standing raised by Gorsuch, We discussed taxpayer standing, Flast v. Cohen, and how Flast was limited by later cases that said that there's a crucial difference between standing to challenge government spending versus government credits.
We will pick up on Thursday with the Bucklew handout, and then dive into the world of partisan gerrymandering.
The assignment for Thursday 4/11 is to review the Bucklew handout, and read today's handouts.

Assignment #2 due Thursday, April 18th

For this assignment, I would like you to predict the outcome of the Supreme Court case of Rucho v. Common Cause. Your prediction should be based solely on the oral argument in the case (not on other insight you've learned about the Justices over the course of the semester). To understand the oral argument, though, you will need to also understand the briefs of the parties, that I’ve distributed today as well.

The specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. (Skip over Justice Thomas, who asked no questions). Discuss the Justices in the order of their seniority: Roberts, Ginsburg, Breyer, Alito, Sotomayor. Kagan, Gorsuch, and Kavanaugh. Pick two distinct interactions per Justice, regarding two different issues if possible.

Discuss how the questions asked or the comments made by a Justice may reflect a view of what the outcome should be. Remember that the Court issues two kinds of things: a Judgment (whether the decision of the three judge District Court is affirmed or reversed); and an Opinion (the reasoning used to get to the result), Justices may agree on a result (a judgment) without agreeing on an opinion. I’m looking for both the result and the reasoning. So your prediction should be directed not only to the final vote (for or against the state or the challengers), but also rather to the distinct issues and positions raised by the parties.

An important part of the assignment is for you to identify those issues. Some examples (not an exhaustive list) of issues are: whether justiciability is an open question, or has already been settled; whether the branches of government other than the federal courts are entrusted to fix any partisan gerrymandering problem, and are capable of doing so; whether the federal courts will be swamped with cases if they take on partisan gerrymandering; whether it’s possible to identify and target only the extreme outliers of extreme gerrymander; and whether it’s possible to identify a discernible standard by which to judge the redistricting other than proportional representation.

Here’s a fictitious example to demonstrate the format that I’m looking for:

Justice Thomas asked Bondurant whether the founders wrote anything that indicates that they considered partisan gerrymandering to be an issue to be decided by the courts (40:14). This exchange indicates that Thomas thinks that the original meaning of the constitution was to leave the question of redistricting up to the state legislatures, or alternatively, to Congress, with no role for the courts. Justice Thomas later asked Riggs why the League of Women Voters would even have standing in the case, because the League has not shown that it has members in all of the 13 Congressional Districts of North Carolina. (63:11). I predict therefore that Thomas will first declare that the plaintiffs have no standing to bring the case, and in the alternative, that the case is not justiciable by the federal courts because this issue has been committed by the constitution to the state legislatures, or to Congress.

Your citations to the oral argument transcript should give page and line numbers. I should be able to quickly see exactly where you are getting your interactions from. Use the transcript from the supremecourt.gov website.

After you finish your eight paragraphs for the eight Justices, end with a final (ninth) paragraph, totaling up and summarizing how you think the case will come out, including your prediction of the specific grounds on which each of the eight Justices will rule, including concurrences and dissents. For this ninth paragraph, limit your discussion to the two interactions that you wrote about in the first eight paragraphs. You don't have to repeat page and line citations in this ninth paragraph, as you've previously included them.

You should use primarily your own words, quoting only in snippets when the particular words of an exchange are crucial.

This paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument”. I don’t need any introduction to the case, its facts, the proceedings below, or precedent.

The paper should be 2-3 pages long. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday April 18. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of that class. IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.

Your papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument. The paper will also not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.

Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.

Be specific as possible. Make your language as clear and simple as possible. Use your own words.

Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.

I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.

The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else’s paper. Do not troll the internet for other people’s analysis. Even if a classmate has missed a class in which we discuss the paper, do not share the class discussion with the absent classmate The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.