Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
ANSWER KEY
Part One End of Part Case
Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action and Immigration
Rights and Fight for Equality By Any Means Necessary (BAMN)
United States Supreme Court
Questions for Analysis
1. It is clear that stare decisis is at the central core of Justice Kennedy’s opinion in Schuette v
BAMN. In this case he sharply criticizes the case of Washington v. Seattle School District. What
Kennedy finds erroneous about the ruling in the Seattle case is the fact that it promotes the notion that
the courts can disenfranchise the voters of a state. This is a dangrous precedent. Kennedy insists that
2. The theory of negative rights addresses the question of the essential natire of rights by arguing
that such rights actually have a negative impact on behavior by creating various ways for people to
escape reponsibility for their unethical or immoral actions. For instance, the right to free speeech
becomes the power to say anything, even things that are insulting, cruel, nasty, hurtful, embarrising,
discriminatory, and so on without being held accountable for those words. Similarly, the right to
privacy becomes an entitlement to do shameful things without anyone else knowing about those
shameful actions. Reitman v. Mulkey and Hunter v. Erickson both involve the right of property owners
3. The Opening Case at the beginning of Chapter 3, CLS Bank International v. Alice Corporation
Pty. Ltd.,, involves a summary judgment motion. The text explains what happened in that case in the
following way: “When the case arrived in the District Court of the District of Columbia, the attorney’s
representing CLS filed a motion for a summary judgment. A summary judgment motion asks the court
for a speedy judgment for the party filing the motion. This motion is filed when there is no genuine
issue as to any material fact, and the party filing the motion is entitled by law to a favorable judgment.
The motion must be supported by a brief that sets forth the legal arguments supporting the claim, along
4. Again, the Opening Case at the beginning of Chapter 3, CLS Bank International v. Alice
Corporation Pty. Ltd.,, involves a summary judgment motion that is eventually reviewed by an en banc
6. It is very difficult to determine in advance the wide variety of answers that students will provide
when they are asked to determine whether Madison’s “federal veto” plan was a good idea. Therefore,
the instructor should accept all well reasoned answers. (Note: the instructor might also refer students to
7. All of the cases cited in Schuette v BAMN do, in fact, involve a public uprising that in effect,
challenges the authority and the wisdom of the governmental officials who, in the exercise of their
constitutionally granted powers, enacted legitimate legislative measures following correct legislative
procedures. So, yes, from that perspective, this is exactly what Madison warned against. So from that
point of view, Madiosn was correct. The real issue here, however, is whether what Madison predicted
8. Yes. Justice Kennedy is urging the type of factionalism that Madison so feared. A portion of
Kennedy’s opinion that could be used as a direct answer to Madison’s position. “It is demeaning to the
democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds. The process of public discourse and political debate should not be
foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who
seek to use racial division and discord to their own political advantage. An informed public can, and
must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the
right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a
consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would
be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters
9. A complex adaptive system (CAS) is a network of interacting conditions which reinforce one
another, while at the same time adjusting to change from agents outside and inside the system. Justice
Kennedy’s opinion in Schuette v BAMN clearly reinforce the idea that the law works like a complex
adaptive system. All CASs include certain elements each of which is seen here. First, very CAS
operates as a result of the interaction of a variety of agents. In this case, we see the interaction of the
legislature which passed the challenged bill or enacted the policy in the first place; the executive who
signed the bill making it law; the people who then challenged the legislation by placing it on the ballot
for a vote, and the courts which reviewed the challenges to the challenges. Second, in a CAS there is no
central controlling agent, no single all powerful “boss” as it were. Instead, control is dispersed among
10. Kennedy may have, indeed, fallen into the trap of singular morality. In fact, the entire referendum
process (that is, giving the power to change legislative and executive decisions to the people) ignores
the dual morality of the Weberian Moral Dyad. Weber places the weight of moral consequences
END of Part One End Case
