Instructions for Chief and Associate Justices

Instructions for Opinions (Chief and Associate Justices):

As a justice, you are preparing an opinion for announcement. While the modern Court produces one majority opinion reflecting collaboration among the justices in the majority coalition, along with concurring and dissenting opinions in many cases, for the purposes of this exercise we will rely on the Marshall’s Court practice of issuing seriatim opinions. As such, each justice will write his/her own opinion independent of what fellow justices are thinking. In developing your opinion, each of you should note the constitutional questions or issues that are presented by the case, and address them in a logical order. In addition to drawing upon relevant precedents, you will be encouraged to use one or more legal approaches (literalism, originalism, balancing analyses) to help organize and clarify your thinking about the case and how it should be resolved. Your paper should serve two central purposes: (1) demonstrating your understanding of course material by setting forth a clearly delineated analysis of the case; and (2) presenting a powerful argument capable of enlightening, and perhaps successfully persuading, your peers. Your papers must be well written, logically organized, and, of course, attentive to issues of grammar and spelling.

The opinion should begin by clearly identifying the central constitutional question or questions presented by the case, and then briefly describing the case’s background as set out in the materials provided to you. The core of your opinion, however, should focus on your application of various tools of legal reasoning to the facts before you, in the service of reaching a conclusion about how the case should be resolved. Case facts should not be discussed for their own sake; rather, you should work the most germane case facts into your argument as support for it. Do not add to the case facts presented to you; it is essential that all actors work with the same information. And be certain to acknowledge the most compelling counter-arguments, while resisting the temptation to present and easily knock down a caricatured version of them, and to respond to them directly.

Much of the assessment of your brief will rest on how well you make use of relevant materials, including Supreme Court opinions from precedent cases. While only majority opinions have precedential value, you may also draw upon the reasoning presented in plurality, concurring, and dissenting opinions if you find that reasoning persuasive. When drawing upon non-majority opinions, be certain to note that the cited material comes from a non-majority opinion.

Remember, too, that you are not bound by or restricted to the arguments, interpretations, or source material presented by counsel, though you will be expected to consider counsel’s better arguments. You may rely on arguments or precedents that differ from those presented in the briefs or at oral argument. Indeed, to excel in this exercise you will need to produce an original opinion guided by counsel’s contributions, but not limited to them. An opinion that simply repeats the two sides’ positions and weighs them, using only the materials counsel has supplied, will be considered minimally acceptable.

Rules Governing Formatting and Citation:

Your opinion is limited to ten double-spaced and numbered pages with 11–12 point font and 1” margins. A separate cover sheet should be attached with your name and student ID #. Do not feel the need to resort to stilted language that you might associate with “writing like a lawyer.” But your language and tone should be appropriately formal. Equally important, your opinion must display an appropriate degree of professionalism; they must be logically organized, cleanly written, and attentive to issues concerning grammar, syntax and spelling. Poor writing will make the merits of your argument less visible to your various audiences, and as such will make others less likely to view it as persuasive.

Conventions on citation:

  • The first time you cite a case, use the full case name (in italics) with the year and the full citation. For example, Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
  • For subsequent references to that case, you may use a shortened version of the case name, or just the case name. For example, Parents Involved.
  • Usually, the shortened version refers to the first party, but when the United States is the first party, you should refer to the second party. (Because the United States government is such a frequent litigant before the Court, referring to the United States in the shortened version would cause substantial confusion about which case you are referring to.) For example, U.S. v. Ballard, 322 U.S. 78 (1944) becomes Ballard. If a state is the first party, then you should use both names in subsequent references. So Miranda v. Arizona, 384 U.S. 436 (1966) would become Miranda v. Arizona.

Some other usage conventions to keep in mind:

  • When you are referring to the Supreme Court, it is capitalized, even if you use just “the Court” or “the High Court.”
  • It’s “Justice Breyer” when referring to a specific justice, but “the justices” when referring to them generically.
  • Similarly, while proper nouns are capitalized (“Congress,” “the Constitution”) their adjectival forms are not (“congressional,” “constitutional”).
  • Specific amendments or articles of the Constitution should be capitalized as well.
  • The plural of “precedent” is “precedents” not “precedence.”

Oral Argument and Conference (Chief Justice):

Being the Chief Justice means that you must be ready to lead your Court during argument and conference. You will begin the session by calling the case, “We will now hear argument in [case name]. Counsel for the petitioner.” You will begin timing the counsel as soon as the attorney begins speaking. Counsel must begin with, “Mr. (Ms.) Chief Justice, may it please the Court.” If not, the Chief should instruct counsel to address the Court properly.

Here are your key duties during oral argument:

  • Monitoring counsel’s remaining time and, when time is up, interrupting counsel and asking counsel to be seated.
  • Making sure that questioning is substantive and based on the case facts and other relevant materials. If questioning veers away from the main constitutional issues, be prepared to steer it back toward the issues at the heart of the simulation.
  • Moderating the discussion in such a way as to maintain proper decorum. Be prepared to step in to prevent discussion from getting too heated or personal.
  • Your job does not include calling on particular justices, and you are not responsible for ensuring that each justice asks a question. But if you find that one justice is dominating the conservation and others want to participate but can’t, you may gently intervene to ask that justice to hold his/her questions for a brief period so that others may get an opportunity.
  • If your colleagues are not willing to jump in and pose questions to counsel, you should be prepared to jump-start the proceedings. An oral argument session in which counsel gets to give an uninterrupted speech is one that not only will serve little purpose to you and your colleagues, but also will reflect badly on you.
  • Being well-prepared with respect to the case facts, the arguments raised by each side, and relevant precedents, judicial tests, and legal doctrines. You may bring written materials with you to oral argument.
  • To get a clearer sense of how oral argument at the Supreme Court tends to go (types of question, pacing, etc.), you might want to listen to some oral argument at

At conference, the Chief Justice speaks first, as befits his/her status as first among equals. In speaking first, you will have the opportunity to frame the issues at hand. Because the other justices will be influenced by your framing, you will need to be clear and concise in describing how you plan to vote and how the case facts and relevant legal materials have led you to that position.

Subsequently, you will be responsible for moderating discussion amongst your colleagues. On the actual Supreme Court, you speak first, followed by the other justices in declining order of seniority. Because seniority will not be an issue in our simulation, you may determine the order for speaking. On the contemporary Supreme Court, each justice is given an opportunity to speak before anyone has an opportunity to respond. This mechanism ensures that all justices will have their say, and it prevents the most aggressive members from dominating the proceedings from the outset. But as long as you provide all justices an opportunity to respond to your initial framing, you have discretion over how exactly you will run the conference.

Oral Argument and Conference (Associate Justices):

Oral argument begins with the Chief calling the case, and the petitioner’s argument. After the petitioner says, “Mr./Ms. Chief Justice may it please the Court,” your role begins in this part of the simulation. As an associate justice, you will have read the materials, including the parties’ briefs, prior to oral argument. You will probably have some preliminary thoughts about how the case should be decided; indeed, you may already have a working draft of your opinion. But oral argument can play a significant role in shaping your thinking on the case and helping you to develop your written opinion. Your main role here is to ask strong substantive questions of counsel. Silence during oral argument will reflect poorly on you, in that it will signal a lack of preparation or interest on your part.

In particular, you should use your questions to do some combination of the following:

  • Demonstrate the superiority of one approach to another.
  • Clarify some ambiguity, or resolve some tension, within counsel’s brief.
  • Explore how resolving the case a certain way might influence the development of legal doctrine. Would precedents have to be overturned, or extended? Would a judicially created test have to be modified or replaced? If the latter, what test should replace it?
  • Signal the other justices about your perspective.
  • If you think counsel failed to answer a fellow justice’s question satisfactorily, you may ask follow-up questions. If you think counsel had trouble understanding the question, you could offer to rephrase.
  • If you are sympathetic to counsel’s position and think that counsel is struggling to answer a hostile question, you could suggest an answer in your questioning. (Counsel might not recognize that you have thrown them a life preserver. If this happens, don’t hammer them with it; there’s only so much you should do to rescue a floundering attorney.)

To get a clearer sense of how oral argument at the Supreme Court tends to go (types of question, pacing, etc.), you might want to listen to some oral argument at

At conference you must be prepared to state your position on which side should prevail (petitioner or respondent) and the chain of legal reasoning—precedents, applications of legal tests and doctrines—that led you to that conclusion. The Chief Justice will open the discussion, and as such will have the first opportunity to frame the case. You are free to agree or disagree with the Chief’s general framing of the case and any of its particulars, as well as the Chief’s holding; you owe no deference to the Chief just because of his/her position. But irrespective of where you stand, you must state your position clearly and cogently. Simply adding a “what he/she said” to someone else’s statement does not demonstrate your facility with the material. Be prepared to justify your decisions and to engage your colleagues respectfully during the open discussion segment of conference.