The Briefs on the Merits - Bna

Ch. 13.11(f) <strong>The</strong> <strong>Briefs</strong> on the Merits 719
a majority of the presently sitting Justices in an identical situation. Few cases
of that nature reach the Court, and if they do, the Court’s decision to grant
certiorari suggests that at least some of the Justices may be willing to reconsider
their own prior decision.
Briefing a constitutional question presents particular challenges. Constitutional
arguments can be historical, textual, structural, prudential, or doctrinal—or
a combination of these approaches. See PHILIP BOBBITT, CONSTITU-
TIONAL FATE: A THEORY OF THE CONSTITUTION 7–8 (1982) (explaining these
five archetypes of constitutional argument). While one of these types of arguments
may be dominant in any given case, counsel may have to consider and
address all of them. Moreover, Justice Breyer has observed:
[T]he fact that most judges agree that * * * language, history, tradition, precedent,
purpose and consequence * * * are useful does not mean that they agree
about just where and how to use them. Some judges emphasize the use of language,
history, and tradition. Others emphasize purpose and consequence. <strong>The</strong>se
differences of emphasis matter * * *.
STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CON-
STITUTION 8 (2005). Indeed, various Justices have remarkably different approaches
to constitutional interpretation. Justice Breyer, for example, has argued
that the Constitution should be interpreted with reference to the active
liberty of participation in democratic self-government. Id. Justice Scalia, in
contrast, contends that the Constitution should be interpreted in accordance
with its original meaning. See ANTONIN SCALIA, A MATTER OF INTERPRETA-
TION: FEDERAL COURTS AND THE LAW (1997). 25
In addition, stare decisis carries less weight in constitutional cases; the
Supreme Court generally considers itself freer to overrule constitutional decisions
than other decisions. See, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 543
(1962) (noting the Court’s “considered practice” not to apply stare decisis “as
rigidly in constitutional as in nonconstitutional cases”); cf. Planned Parenthood
v. Casey, 505 U.S. 833, 867 (1992) (joint opinion of O’Connor, Kennedy, and
Souter, JJ.) (arguing for an especially strong application of stare decisis when
“the Court’s interpretation of the Constitution calls the contending sides of a
national controversy to end their national division by accepting a common
mandate rooted in the Constitution”). Accordingly, individual Justices are
more likely to adhere to their prior dissenting views regarding the Constitution.
See, e.g., Kimel v. Florida Board of Regents, 528 U.S. 62, 97 (2000) (Stevens,
J., joined by Souter, Ginsburg, and Breyer, JJ.) (“Despite my respect for stare
decisis, I am unwilling to accept Seminole Tribe as controlling precedent.”).
See also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct.
2738, 2794 (2007) (opinion of Kennedy, J.). As a result, in some constitutional
25 See also, e.g., United States v. Virginia, 518 U.S. 515, 557 (1996) (Ginsburg, J.) (stating that a
“prime part of the history of our Constitution * * * is the story of the extension of constitutional rights
and protections to people once ignored or excluded); id. at 568 (Scalia, J., dissenting) (arguing that the
Court’s function in constitutional cases is to “prevent backsliding from the degree of restriction the
Constitution imposed upon democratic government, not to prescribe * * * progressively higher degrees”);
Lawrence v. Texas, 539 U.S. 559, 578 (2003) (Kennedy, J.) (“As the Constitution endures, persons in
each generation can invoke its principles in their own search for greater freedom”).