The critical analysis should aim for 4-6 typed, double-spaced pages of your best academic prose. The analysis should be descriptively titled. It is due at the beginning of class on Tuesday, October 25.
The goal of your critical analysis is (a) to identify and explain, in no more than a page, the arguments that the writers of the Supreme Court decisions are making in either NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL. or WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. or both, and (b) craft your own argument about that argument, taking four to five pages to do so. As the page distribution suggests, don’t go overboard on summary. Your evaluative goal matters more. Minimize your summary, then, unless you take issue with the summaries already provided in each decision’s syllabussection.
It may seem a tall order to analyze the opinions of United States Supreme Court Justices, but bear in mind that they are advancing an argument, bringing forth evidence, and interpreting that evidence in the way they imagine the best possible, the most relevant. Their aim is much less to present facts than to persuade their multiple audiences, which includes citizens, that their argument is justified. Once you recognize that these justices are making arguments, you can analyze to what degree you find any given argument compelling.
Following are some possible questions you could ask to evaluate arguments—questions designed to get your analysis started, not questions all of which must be answered and which must structure your analysis:
Assumptions—what assumptions do the justices’ arguments presuppose? What kind of person would accept these assumptions? Who might reject them and for what reasons?
“Being an Ally”—are there lines of reasoning that seem to reinforce certain cultures while marginalizing or excluding others? Try being an ally of those unfavored cultures, and try doing so to test whether the U.S. legal culture might be more narrowly conceived than it ought to be, more oppressive than it imagines itself to be.
Definitions—the justices are not merely defining terms but arguing that these terms should be understood in a particular way for particular reasons. Often a justice will define a term in explicit opposition to how another justice has defined it. In such cases, whose justification for their definition do you find stronger—and on what grounds?
Evidence—what is the quality of the evidence? If the evidence comes from a credible source, is the evidence logically tied to the conclusions said to follow from it? Could other conclusions be just as logically reached?
Fallacies—are there fallacies in the reasoning? For whom are these fallacies fallacious? For whom might they be not fallacies but reasonable fears, points of emphasis, generalizations that are not hasty but valid, and so on?
Precedents—these are already-decided cases said to be relevantly similar to the case to be decided. Saying that a case is a precedent is asking the reader to place the facts of the current case into another context, to accept thereby that the meaning of a case is one thing and not another. It may help to view legal precedents as analogies. What is analogous to what? Is it sufficiently analogous? Are the similarities among previous cases and the current case more telling than the differences among them? Who would think so, and why?
“Rhetoric”—do specific language choices of the author betray a certain ideology or bias, or frame the argument in a certain way? Is there awareness that these choices could be otherwise, that the argument could be framed differently? Are these alternate ways of labeling or framing acknowledged and engaged in a fair-minded way? In this category, you might also place the consideration of objections and questions that challenge how writers are making their case: How do the writers acknowledge and respond to objections and questions?
Value judgments—what you’re examining here is how the justices present themselves: as someone who simply applies the law neutrally to the case in question or as someone who is helping make policy. Judges will typically deny that they are making policy, yet the evidence of disagreement among justices—sometimes very stark disagreement—suggests that more than mere application of legal principle to particular case is involved. Consider the possibility that even seemingly neutral descriptions have a prescriptive (that is, policy-oriented) dimension. We say, for example, that all people are created equal, but in descriptive terms, people are not all created equal. But we say that all people should be treated as equal not because they are equal in descriptive terms but despite the fact that they are not. If a justice purports to be making a neutral application of the law, do they have good reason for doing so? If a justice trespasses into policy-making territory, how do they justify that apparent transgression?