Case Analysis - Case Analysis Morse v Frederick POSC 130g...

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Case Analysis: Morse v. Frederick POSC 130g: Law, Politics, and Public Policy 12/6/07
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The American Legal system is more than a hierarchy of courts that facilitate incident resolution. Though the courts, and the Supreme Court in particular, are often viewed to be above politics and policy making, there are conflicting beliefs that instead see the court as one of the most influential branches in the United States Federal government. These opposing attitudes can be easily outlined in the Constrained Court View (CCV) versus the Dynamic Court View (DCV) debate. “The CCV and DCV are a series of arguments about the role of law and courts in politics and public policy, which date back to the Ratification, and each view encompasses a set of arguments about doctrinal, institutional and cultural limits on the law.” 1 The role and stance of a court differs from case to case, making hard for the courts to be entirely dynamic or entirely constrained. In Morse v. Frederick 2 , a case involving the First Amendment and free speech in schools, the Supreme Court acted dynamically by limiting the rights of students when the case could have been handled in a far more constrained manor. This case supports the Dynamic Court View because the Supreme Court limited the protections of the First Amendment, which was a significant social change, despite previous precedent in Tinker v. Des Moines Independent Community School District 3 which gave First Amendment rights to students. The court, in a narrow decision, redefined free speech rights in schools. The Constrained Court View states that the courts have external and internal constraints that prevent them from policy making or being judicially active. These 1 Professor John Barnes, Lecture: Political Science 130g: Law, Politics, and Public Policy , University of Southern California (Dec. 4, 2007). 2 Morse v. Frederick , 551 U.S. --- (2007). 3 Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969). 2
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limitations fall into three categories: doctrinal, institutional, and cultural. Gerald Rosenberg gives a detailed analysis of the first two constraints in his book, The Hollow Hope . Doctrinal constraints refer to the written law. The courts do have to abide by the law, and many cases involve simple legal issues and often address them in routine cases. 4 The role of precedent is another significant doctrinal constraint 5 . Justices and Judges must abide by previous court rulings unless they can find significant legal proof that would reverse the decision. Institutional constraints deal with the make-up of the courts. Courts are passive and cannot go out and seek cases themselves, cases must be brought to them. Also, as Rosenberg points out, “judges do no select themselves.” 6 Judges are nominated by the President and confirmed by the Senate, which means that their political opinions often line up with those of the Executive branch. Cultural constraints are a much more vague form of restraint. Public opinion is a cultural constraint, and while it may not seem
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  • Fall '06
  • Below
  • Public Policy, Supreme Court of the United States, First Amendment to the United States Constitution, Tinker v. Des Moines Independent Community School District, Samuel Alito

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