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The Power and Importance of Precedent in the Decisions of the Supreme Court
by Lena Morreale Scott, Street Law, Inc.



Intro   Learning Activities   Culminating   Cross-curricular   Community
INTRODUCTORY ACTIVITY (5 minutes):

DAY ONE:

  1. Ask students:

    • Think quietly of a time when your parent, guardian, or teacher made a decision about something you did based on a similar situation in the past.

      (Do not solicit answers for discussion at this point, just let students think quietly for about 30 to 60 seconds.)

    • Now, think quietly about whether you felt his or her decision was fair. Why or why not?

      (Do not solicit answers for discussion at this point. just let students think quietly for about 30 to 60 seconds.)

      Now, ask three or four students to volunteer giving examples based on the questions above. Be sure each student also explains whether he or she thought the decision was fair and why.

      Try not to prompt students further, but if they are struggling you might offer one of the suggestions below.

      "You need to be home at 10:30 p.m. because your older sister needed to be home at 10:30 p.m. when she was your age."

      "This assignment was due yesterday. You've known for months that my policy is to take off 10 percent of the possible points every day it is late. I'm sticking to that."

      Ask students to:

      • Give an example of a time when you thought your parent, guardian, or teacher should not have applied the same old rules or reasons to your new situation.

        Try not to prompt students further, but if they need help, you might suggest:

        "But my sister was my age more than 15 years ago. Times have changed and nobody comes home at 10:30 anymore."

        "But my grandmother was rushed to the hospital the night before last and I had to stay with her because my parents could not leave work. I did finish the project last night as soon as I could."

      • Think about a time when your parent, guardian, or teacher seemed to ignore their own previous decision. Did that seem fair? Why or why not?

      • What are the benefits and risks of sticking by the known rules?

      • What are the benefits and risks of changing the rules for new situations?

  2. Tell students:

    We have just been talking about something very similar to the term "precedent." Try to define the word "precedent" in your own words.

    As students suggest the meaning of the term, record their ideas on the board or transparency. Then compare their answers to the definition of "precedent" you have already written down.

    Precedent: A court decision that guides future cases with similar questions.

LEARNING ACTIVITIES

Introduction to Precedent and Stare Decisis (20 minutes)

  1. Explain that the Supreme Court justices wrestle with the issue of precedent on a daily basis, knowing that their decisions will affect not just the people in a particular case, but potentially millions of other Americans who could be in similar situations in the future.

    Their questions, like those in our introductory activity, are typically about when precedents should be honored and when they should be overturned. Different justices often have different views on this -- some even change their views over time.

  2. Explain the term "stare decisis," a legal term from Latin that means "to stand by things decided." This is basically to apply precedent. Show students the definition you have already recorded on the board and ask them to write it down.

  3. Ask students to move into groups of three. When they have settled with their groups, distribute Handout #1: What the Justices Think About Precedent and Stare Decisis, which can be downloaded in the materials section of this lesson.

    Review the directions to be sure students understand their assignment. Tell students they have 15 minutes to complete the handout and write the ending time on the board.

  4. Ask students to discuss the answers to the questions on their handout.

    1. Based on what you read, why is adhering to precedent (or stare decisis) important?

      Answers will vary, but will likely include:

      • It promotes predictable and consistent development of legal principles.

      • It promotes reliance on judicial decisions.

      • It limits the power of the judiciary.

      • It helps people know what to expect in certain legal situations, etc.

    2. Based on what you read, what do you think would be acceptable grounds for reversing an existing precedent?

      Answers will vary, but will likely include:

      • It has become indefensible over time.

      • It is clearly wrong.

      • It should not remain the law of the land.

      • It is causing significant harm.

      • The precedent is not workable.

      • The precedent has been eroded by subsequent decisions, etc.

Introduction to Rehnquist and His Views on Precedent (20 minutes)
(plus optional time to summarize decisions of the Warren Court)

  1. Explain to students that after Richard Nixon became president in 1969 and again in 1973, he was able to appoint four justices to the Court, and many legal scholars expected them to help overturn a number of precedents. This was a time just after many controversial decisions of the Court under the leadership Chief Justice Earl Warren.

    NOTE: Use this time to summarize some of the major decisions of the Warren Court. If you have not done so, you may wish to show episode three of this PBS series, THE SUPREME COURT, "A Nation of Liberties." It will help students understand many important cases of that era, including the flag salute cases, Brown v. Board of Education, Gideon v. Wainwright, and Miranda v. Arizona.

  2. Prepare students to watch a clip from episode four, "The Rehnquist Revolution." Before you start the episode, distribute Handout #2: Guided Questions for Watching "The Rehnquist Revolution." Review the purpose of the handout and direct students to focus on the question for the first clip as they view the clip.

  3. Begin the first film segment, "Nixon's Election," when you see protestors and you hear the protestors singing, "Revolution has come (off the pigs)...time to pick up the gun." Stop the film when you hear historian Walter Dellinger say, "He had written an article decrying the influence of liberal law clerks, making the Court too liberal."

  4. After the clip ends, ask students to turn to a neighbor to discuss the questions and to answer as many questions as they can. Give them five minutes to do so and write the ending time on the board.

    After students have discussed the answers with partners, ask volunteers to try to answer the questions in a class discussion. (These are the questions at the bottom of student Handout #2.)

    1. What were some of the major campaign promises and themes during Richard Nixon's campaign?

      Answers will vary, but will be along these lines: We live in a time of chaos and disorder. We can give you law and order. We can give you peace.

    2. Once elected, Nixon asked then Assistant Attorney General William Rehnquist to help identify potential people to appoint to the Court. What sort of justice did Nixon (and Rehnquist) want to appoint?

      Answers will vary, but essentially, Nixon (and Rehnquist) was looking for "law and order guys," Southerners, young people who could serve a long time, with some judicial experience who would stick to the letter of the Constitution. He called them "strict constructionists."

    3. What is the idea of "strict constructionism" and how does it contrast with a more "judicial activist" philosophy about interpreting the Constitution?

      Typically people who believe in following the "letter" of the Constitution -- that we should not try to see things in it that are not literally printed in it -- are called strict constructionists. Judicial activists are inclined to see what the Constitution implies about current events and legal predicaments, even though the words in the Constitution were written hundreds of years ago.

    4. In addition to nominating Chief Justice Warren Burger, Associate Justice Harry Blackman, and Associate Justice Lewis Powell, whom did Nixon appoint?

      William Rehnquist, who became an associate justice.

  5. Explain that Rehnquist was considered by most to be a strict constructionist, and one of the decisions he disagreed with most was in Miranda v. Arizona, which we will look at in more detail in the next class.

DAY TWO

Introduction to Miranda v. Arizona (20 minutes)

  1. Ask a student to summarize what they learned in the prior class. (This will help refresh students' memories and help those who were absent have some context for today's work.)

  2. Ask students:

    • What are Miranda warnings? What do they say?

    If they are unsure, ask them to think about television shows or movie scenes in which someone was put under arrest. What rights did the police inform the defendant of?

    You have the right to remain silent.
    Anything you say can and will be used against you in a court of law.
    You have the right to an attorney.
    If you cannot afford an attorney, one will be appointed for you.

    If you brought a copy of a Miranda warning card, pass it around the class now.

    • Tell students: These rights apply to a person who is being questioned by police and is in police custody. This is called a "custodial interrogation."

    • Ask students: Would police have to read give you a Miranda warning if they were ...

      ... asking you for directions? (no -- no custody, no interrogation)
      ... asking you which way someone ran? (no -- no custody, no interrogation)
      ... telling you to stop loitering on a corner? (no -- no custody, no interrogation)
      ... asking you and several other students questions in the lunchroom? (no -- no custody)

  3. Tell students: These Miranda warnings are the result of an important case decided by the Supreme Court in 1966, Miranda v. Arizona. The case centered on the protections accused people are guaranteed by Fifth and Sixth amendments to the U.S. Constitution.

    Project Transparency #1: The Fifth and Sixth Amendments to the United States Constitution.

    NOTE: If your students are particularly skilled readers, or if you have more time to teach this lesson, you may want to adapt this transparency and include the original language of the amendments.

  4. Distribute Handout #3: Miranda v. Arizona (1966) and Related Precedent Cases.

    Explain to students:

    In the Miranda decision, the Court essentially said that if police and prosecutors want to admit a confession against a defendant at trial, they must show that the defendant was warned of his or her rights to remain silent and to an attorney. If a defendant believes warnings were not given or that the confession was coerced, his or her attorneys can request that the confession and evidence obtained through the confession should be "excluded" at the trial. This is called the exclusionary rule.

  5. Explain to students that the Miranda decision was not universally popular when it was made. In fact, even today, some people object to its requirements.

    Ask students to turn to a neighbor and to discuss:
    • Who might not like the requirement of Miranda warnings?

    • What might their objections or concerns be?

    Give the student pairs three or four minutes to discuss the questions. Post the ending time on the board. When time is up, ask two or three students to volunteer their answers in a class discussion.

    Answers will vary, but will likely include:

    • Police, prosecutors, victims, and their loved ones might feel that guilty people "get off" because of a technicality in police procedures.

    • Others might say that Miranda gives more rights to accused people than it does to victims.

    • Some critics believe the suspects who invoke their rights to remain silent or to an attorney must be guilty.

    • The Court has no business imposing rules on the police. The Constitution does not promise a free attorney or "the right to remain silent."

  6. Tell students that one of the critics of Miranda was William Rehnquist, who believed that the Constitution protects individual rights very narrowly.

    After serving as an associate justice for 14 years, Rehnquist became chief justice of the Court in 1986. Now he had his chance to try to influence the Court to move in a new direction.

  7. Play the second segment, "Rehnquist's Views on the Miranda Decision," that begins when you see Rehnquist and the other Justices entering The House of Representatives and you hear the narrator say, "But this didn't look like the Revolution that Right had intended." End the segment when you see an image of The Supreme Court building and you hear historian Joseph Kobylka say, "It should be reversed. So Dickerson comes to the Court, Miranda's gotta go, the logic would be."

Testing the Precedents in Miranda -- You Be the Judge
(40 minutes total, 20 the first day and 20 the following day)

  1. Ask all students to take out a sheet of paper and a pen or pencil.

    Divide the class into two equal groups.

    • Tell one group they will be "Group A," studying the Dickerson case that came before the Supreme Court in 2000. Ask the students in Group A to move to one side of the classroom (with their writing materials).

    • Distribute Handout #4-A: Applying Miranda to Dickerson v. United States (2000) to this half of the class. You should also distribute Handout #5A: Classifying Arguments in the Dickerson Case to them.

    • Repeat the same process for the other half of the class. They will be "Group B" and will be studying a 2004 case called Yarborough, Warden, Warden v. Alvarado. Ask Group B to gather on the other side of the classroom, bringing their writing materials with them.

    • Distribute Handout #4B: Applying Miranda to Yarborough, Warden v. Alvarado to this half of the class. You should also distribute Handout # 5B: Classifying Arguments in the Alvarado Case to them.

    NOTE: You may want to further divide the class to put students into smaller groups. A group size of three to four may increase participation in the activity. A large group discussion may be better if there are many students who would find the reading level or questions challenging. If you opt for larger groups, you should work with them to encourage participation. A resource person could work with the other half of the class, if available.

  2. Ask a student volunteer to read the directions at the top of Handout #4. (Handouts #4A and 4B have the same directions.) Check to make sure students understand the directions.

    Ask students to begin working in their groups to complete both handouts. Tell them they have 15 minutes to work on the handouts today and that they can complete them at the beginning of class tomorrow. Write the ending time on the board.

    As students are working, circulate around the room to help them. If community resource people have joined you, they can help groups too. Remind students when time is nearly up.

  3. When there are three minutes left in class, ask students:

    • What are Miranda warnings?

    • When are they required?

    • What is the exclusionary rule?

DAY THREE

  1. Ask a student to summarize what they learned in the prior class. (This will help refresh students' memories and help those who were absent have some context for today's work.)

  2. Ask students to return to their groups from the previous day. Ask if they need any help or clarification about the assignment.

CULMINATING ACTIVITY:
Learning What the Court Decided About Precedent and the Cases following Miranda (30 minutes)

  1. Call students back for a whole-class discussion. Distribute the extra copies of Handouts 4A, 4B, 5A, and 5B to the students who did not receive them earlier in the lesson. (Now, all students should have all four handouts.)

  2. Turn students' attention to Handout 4A: Applying Miranda to Dickerson v. United States (2000). Ask a student volunteer(s) to read the facts of the Dickerson case aloud as other students read along silently.

    Ask students:
    • Do you remember the video clip we watched earlier in this lesson? How did Rehnquist feel about the Miranda decision?

    Rehnquist hated the Miranda decision. He did not think it was based in the Constitution. He wanted it to be reversed.

    Project Transparency #2: You Be the Judge: Tally Sheet.

    • If you were a justice in this case, raise your hand if you would rule in favor of Dickerson (that all suspects must be read their Miranda warnings when they are interrogated in custody -- and that the Omnibus Crime Control Act of 1968 should not be allowed to dilute Miranda.)

    Ask students who voted for Dickerson to keep their hands up for a moment. Tally their votes on the board or ask a student volunteer to do so. Then ask the students who studied the Dickerson case in-depth to keep their hands up. Ask those students:

    • What do you think are the best arguments to support your case? (Ask two or three students to give their reasons.)

    Ask all students:

    • If you were a justice in this case, raise your hand if you would rule in favor of the United States (that the 1968 law is constitutional and police do not have to read every suspect his or her Miranda rights during custodial interrogations, and evidence from confessions without Miranda warnings is admissible in court as long as police can prove the confession was voluntary.)

    Ask students who voted against Dickerson to keep their hands up for a moment. Tally their votes on the board or ask a student volunteer to do so. Then ask the students who studied the Dickerson case in-depth to keep their hands up. Ask those students:

    • What do you think are the best arguments to support your case? (Ask two or three students to give their reasons.)

    Answers will vary.

    Ask all students:

    • How do you think the Supreme Court ruled in this case? Why?

    Answers will vary.

  3. Show segment number three, "The Dickerson Case," which begins when you see the image of The Supreme Court building and you hear A.E. Dick Howard say, "If one reads Miranda, it's not clear whether it comes out of the Constitution..." (Some of this clip will repeat what students saw before in this lesson.) Stop the segment when you see Larry D. Kramer and he says, "Congress has no business telling us what the Constitution should be interpreted to mean, and so this law can't do it."

    Ask students:

    • What did the court decide to do in the case of Dickerson?

    The Court ruled that Miranda is sound precedent, and it requires police to read criminal suspects their rights in situations of custodial interrogation. (Dickerson won.)

    • Current Chief Justice John Roberts speculated about why Rehnquist might have upheld Miranda in the Dickerson case, even though he personally disagreed with Miranda. What did Chief Justice Roberts suggest might have influenced Rehnquist?

    He said that there is a special responsibility in being chief justice -- this person has to protect the institutional stability and security of the Court. The importance of upholding precedent becomes even greater.

  4. Turn students' attention to Handout 4B: Applying Miranda to Yarborough, Warden v. Alvarado (2004). Ask a student volunteer(s) to read the facts of the Alvarado case aloud as other students read along silently.

    Ask students:

    • If you were a justice in this case, raise your hand if you would rule in favor of Alvarado (that juvenile suspects should be treated more carefully than adults when police and courts determine when a suspect is in custody and is, therefore, entitled to Miranda warnings).

    Ask students who voted in favor of Alvarado to keep their hands up for a moment. Tally their votes on the board or ask a student volunteer to do so. Then ask the students who studied the Alvarado case in-depth to keep their hands up. Ask those students:

    • What do you think are the best arguments to support your case? (Ask two or three students to give their reasons.)

    Ask all students:

    • If you were a justice in this case, raise your hand if you would rule in favor of Yarborough, Warden (that police should not have to treat juvenile suspects differently when giving Miranda warnings because such a rule would be difficult for police to apply and for courts to enforce).

    Ask students who voted in favor of Yarborough, Warden to keep their hands up for a moment. Tally their votes on the board or ask a student volunteer to do so. Then ask the students who studied the Alvarado case in-depth to keep their hands up. Ask those students:

    • What do you think are the best arguments to support your case? (Ask two or three students to give their reasons.)

    Ask all students:

    • How do you think the Supreme Court ruled in this case? Why?

  5. Tell students that the Court ruled against Alvarado in a close vote, 5-4. The Court said that Alvarado was not in custody when he was interviewed, so he was not entitled to Miranda Warnings at that time. The Court used many of the reasons given in the classification handout to come to that conclusion.

    Ask students to look at quotes #2, 3, 5, and 7 on Handout #5B: Classifying Arguments in Alvarado. These are arguments the majority wrote in its decision.

    Point out that the Court went further in saying that even though juveniles get special consideration in some ways, they are not entitled to special treatment related to Miranda warnings. Finally, the Court said it was important to have a clear rule for police to apply, and applying different standards for juveniles would make it more difficult for police to determine when Miranda warnings are necessary. The Court was citing one of the main reasons stare decisis and precedent are important: that rules are consistent and that people can expect certain outcomes when faced with certain legal situations.

    You should also point out that Justice Breyer wrote a forceful dissent. (He disagreed with the majority opinion.) Tell students that quote #8 is from him.

  6. Ask students the following summary/conclusion questions:

    • What is the meaning of the word "precedent"?

    • What is the meaning of the term "stare decisis"?

    • Why are precedent and stare decisis important?

    • In what circumstances would they be overturned?

    • How did the Supreme Court apply the precedent of Miranda to the case of Dickerson?

    • How did the Supreme Court apply the precedent of Miranda to the case of Alvarado?

    • What are three things you learned in this lesson?

    • What more do you want to know about precedent, Miranda, or the Supreme Court?

  7. Thank students for their work and participation. If resource people joined you in teaching this lesson, thank them as well.

CROSS-CURRICULAR EXTENSIONS

As students watch the video clips, they will be practicing critical media viewing skills that are also taught in English and communications courses. The classifying arguments activity reinforces reading skills that English courses emphasize.

COMMUNITY CONNECTIONS

Students will make connections to their personal lives by analyzing the decisions their parents, guardians, and teachers make and comparing those to the legal concept of precedent. The students will also make connections between a historical case, Miranda, and more recent cases to face the Court, include a case that looks at how Miranda applies to juveniles.