553: Paper #2

Your Jurisprudence

Write a 1,000-or-so-word essay on ONE of the following. Your essay should be typed, double spaced, with an interesting and informative title. The essay is due during class time on the assigned day.

1. "When the people …want to do something that I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, 'Goddamit, let 'em do it.'...If New York wants to go to hell, it's my job to help them get there."

--Justice Oliver Wendell Holmes (Hint: Holmes is NOT an originalist)

What do you think of this judicial philosophy? Discuss with specific reference to at least two cases we've read about in class up to this point. You should chose a case that you would have overturned and one you would have upheld a piece of legislation.

2. Supreme Court Justices take a variety of approaches to constitutional interpretation. They may tend to emphasize the original intent of the framers of the document, or focus on the text itself. They may feel strongly constrained by formal legal rules and precedents, or they may be more willing to look to the “felt necessities of the times” for guidance in deciding cases. Some (like Justice Holmes above) are proponents of judicial restraint, while others are more activist.

You have been appointed to the PEA Supreme Court, scheduled to begin its spring session in late May. Imagine yourself having to appear for your confirmation hearings before the Judiciary Committee of the PEA Senate. You know you will be asked questions about your personal judicial philosophy.

You decide to prepare a short statement to read to the Committee. This statement will explain your particular judicial philosophy and in doing so you discuss at least three cases we've read about in Irons or Toobin. These can be decisions you particularly admire or ones from which you vigorously dissent, but which are useful in demonstrating how you would view Constitutional issues that may come before the court.

Remember that whichever option you choose, this should be a legal and not a political document. You need to articulate a legal rationale for making judicial decisions and you need to explain how you as a justice would be constrained by legal rules or guidelines. Don't just summarize cases; discuss in a way that illustrates your jurisprudence. If you haven't done so already, use the "jurisprudence worksheet" below to prepare for writing the paper.