Chapter 3: Experiential Learning about Constitutional Freedoms

There are six parts to the Supreme Court opinion that I assign:

1. The caption. This can usually be copied from the grant of cert. If there is no grant of cert, the essential elements can be found in one of the opinions available at Supreme Court of the United States.
2. The exordium. An exordium is a call to action that is meant to inspire. It should indicate the value(s) that underlie the opinion, and introduce the issues in the case. It should approximately a page in length (for a short opinion). Here is an example from Justice Anthony Kennedy’s opinion in Lawrence v. Texas, 539 U.S. at 562: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.”
3. The statement of facts. The goal of this section is to explain the factual background of the case, which includes both the facts of the dispute and the litigation that took place in lower courts. Usually the facts of the dispute can be found in the opinion of the court from which the Supreme Court granted cert. However, when my class studied New York State Rifle and Pistol Club v. Bruen, discussed in unit six, chapter 1, the appellate court had summarily affirmed instead of writing a full opinion, which meant students needed to ascertain the facts from the district court decision. The prior history of the case requires reading all the opinions below (usually not more than two) and summarizing the lower court opinions in no more than a paragraph each.
4. The umbrella paragraph. This section transitions the reader from the facts to the analytical section of the opinion. It should outline the writer’s approach to the analysis, setting forth a road map to the issues that the opinion will discuss. This will vary from case to case. For example, this is the umbrella paragraph from Justice Harry Blackmun’s opinion in Roe v. Wade, 410 U.S. at 129: “The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras. Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.”
5. Discussion of substantive issues. Here is the meat of the opinion: the resolution of the issues identified in the exordium and umbrella paragraph. The number of issues will vary by case, as will the length of the discussion of each issue. By the time the students start writing this section, they should have read enough opinions to see how this is done. This section will constitute the bulk of the opinion. Students may wish to subdivide this section to more clearly delineate their arguments.
6. Conclusion. Supreme Court opinions often end with a discussion of the practical consequences of the decision the Court has made. This usually explains why the Court believes its opinion will have more positive than negative consequences. It also may identify issues that the Court’s decision does not impact. Here’s how Justice Kennedy ended his opinion in Lawrence v. Texas, 539 U.S. at 578, knowing that it was likely to be criticized for the extent of the changes it made to state laws: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. . . .”