Should I brief concurrences and dissents, or is the majority enough?

Brief them, at one to two sentences each. In constitutional law the separate opinions often supply the operative framework, as Justice Jackson's Youngstown concurrence does, and they preview future doctrinal shifts. A professor who spends twenty minutes on a dissent is telling you it will appear on the exam.

How do I brief a plurality decision with no majority rationale?

Write the judgment first — who won and what relief issued — then apply Marks v. United States, 430 U.S. 188, 193 (1977), to identify the narrowest concurring rationale and label it as the likely holding. Note explicitly that Marks produces contested results and that lower courts split on how to apply it. On an exam, argue both the plurality's rule and the narrower concurrence.

How much of the facts should I include?

Two or three sentences in most cases, because the constitutional question usually turns on the character of the statute rather than the parties' conduct. Expand only when the facts drive the doctrine — the wartime seizure context in Youngstown, the specific admissions mechanics in affirmative action cases, or the particular speech at issue in a First Amendment case. If you cannot explain why a fact matters to the test, cut it.

Is book briefing enough for constitutional law?

Book briefing handles cold calls fine but fails at synthesis, which is what constitutional law exams test. A workable hybrid is to book brief for class and then write a separate three-line entry per case in a running doctrinal chart: provision, test, effect on prior law. The chart becomes your outline's spine.

What do I do when the Court applies no tier of scrutiny at all?

Record the methodology in the standard-of-review slot. In Bruen the Court asks whether the regulation fits the Nation's historical tradition of firearm regulation; in Dobbs the substantive due process inquiry turns on whether a right is deeply rooted in history and tradition and implicit in ordered liberty. Brief what evidence the Court treats as relevant and at what level of generality it defines the right, because those are the contested moves.

Do I need the procedural history in a constitutional case?

Keep one line, but make it precise about posture, because the standard of review on appeal and the availability of a constitutional holding both depend on it. A grant of summary judgment, a denial of a preliminary injunction, and a criminal conviction produce different scopes of review. Also note the disposition — affirmed, reversed, vacated and remanded — since remands frequently mean the constitutional question was answered only in part.

How to Brief a Constitutional Law Case

What does a constitutional law brief need that a torts brief doesn't?

A torts brief works because the rule is self-contained: duty, breach, causation, damages. Constitutional cases are not self-contained. Each one is a move in a long argument about who gets to do what, and your brief is useless on an exam unless it records where the move sits. Keep the usual fields and add these.

You do not need every field in every case. Structural cases (Commerce Clause, separation of powers, preemption) rarely involve tiers of scrutiny. Rights cases rarely involve enumerated-powers analysis. Individual-rights cases against states always involve incorporation, so note the route: the First Amendment binds Ohio through the Fourteenth Amendment's Due Process Clause, not directly.

Provision and clause: U.S. Const. art. I, § 8, cl. 3, not "the Commerce Clause" alone.
Government actor and action: which sovereign, which branch, which statute, regulation, or executive act.
Type of challenge: facial or as-applied, and what remedy the plaintiff sought.
Justiciability: standing, ripeness, mootness, political question, sovereign immunity, state action.
Standard of review: the test, its elements, and who bears the burden.
Vote: author, joiners, concurrences in the judgment, dissenters.

How do you write the issue statement?

Write the issue as a single sentence containing the clause, the actor, and the action. For a powers case: "Does the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, authorize Congress to criminalize knowing possession of a firearm in a school zone?" That is United States v. Lopez, 514 U.S. 549 (1995), and the phrasing already tells you the answer turns on whether the regulated activity is economic.

For a rights case, name the right, the level of government, and the incorporation route: "Does a state statute prohibiting advocacy of violence violate the Free Speech Clause, applied to the states through the Fourteenth Amendment?" See Brandenburg v. Ohio, 395 U.S. 444 (1969).

Record whether the challenge is facial or as-applied, because the Court frequently resolves the case on that distinction alone and your exam answer will need it. A facial challenger normally must show the law is invalid in all or a substantial share of its applications; an as-applied challenger only that it is invalid against her. If the Court reached a threshold question and never got to the merits, say so in the holding line rather than pretending it decided the constitutional question. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), holds nothing about the Endangered Species Act's merits.

How do you record the standard of review?

Quote the test verbatim and number its elements. Do not paraphrase "narrowly tailored to a compelling government interest" into "very strict," because exam credit comes from applying the elements one at a time. Note the burden: under strict and intermediate scrutiny the government defends the law; under rational basis the challenger must negate every conceivable legitimate purpose.

Also record the trigger — the fact that selected the tier. Sex-based classifications get intermediate scrutiny under Craig v. Boren, 429 U.S. 190 (1976); disparate impact without discriminatory purpose gets rational basis under Washington v. Davis, 426 U.S. 229 (1976); commercial speech gets the four-part inquiry of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The trigger is what you argue about on an exam; the tier follows mechanically once you win the trigger.

Some doctrines no longer use tiers. New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), directs courts to ask whether a regulation is consistent with the Nation's historical tradition of firearm regulation. When the Court substitutes a methodology for a tier, the methodology is the standard of review — brief it in the same slot.

How do you brief a fractured Court?

Constitutional cases splinter more than any other subject, and the lead opinion is often not the law. Under Marks v. United States, 430 U.S. 188, 193 (1977), when no rationale commands five votes, the holding is the position taken by the Justices who concurred in the judgment on the narrowest grounds. Your brief should identify that position explicitly and flag that lower courts disagree about how Marks applies.

The canonical example is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where Justice Jackson's three-category concurrence at 635–38 became the operative framework and Justice Black's opinion for the Court did not. In NFIB v. Sebelius, 567 U.S. 519 (2012), the individual mandate survived only under the taxing power, on a rationale five Justices reached by different routes, while seven Justices found the Medicaid expansion unconstitutionally coercive.

Practically: write a vote line that names the author, lists joiners by part number when the opinion is fragmented ("Roberts, C.J., for the Court as to Parts I, II, and III-C"), and gives each separate writer one sentence of what she would have held and why. Dissents matter here too — today's dissent is regularly tomorrow's majority, and Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), is more tested than the opinion it answered.

How do you place the case in the doctrinal line?

Add a two-line field labeled "prior law / effect on precedent." Write what the rule was before the case and what it is after. Lopez left Wickard v. Filburn, 317 U.S. 111 (1942), formally standing while carving out noneconomic activity; Gonzales v. Raich, 545 U.S. 1 (2005), then pulled much of that ground back. Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), expressly overruled Roe and Casey. City of Boerne v. Flores, 521 U.S. 507 (1997), narrowed Congress's Section 5 enforcement power to measures showing congruence and proportionality.

Separate holding from dicta while the case is fresh. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), holds that Maryland could not tax the Bank and that Congress could charter it; the resonant language about a constitution "intended to endure for ages" is not the holding, though professors quote it constantly. Mark both, labeled correctly.

How should you cite inside the brief?

Cite Supreme Court decisions to the United States Reports only, with no parallel citation to S. Ct. or L. Ed.: Printz v. United States, 521 U.S. 898 (1997). Use S. Ct. only when the case is too recent for a U.S. Reports page. For pre-1875 cases, include the nominative reporter in parentheses: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Pinpoint everything you will later quote: Lopez, 514 U.S. at 559. Identify separate opinions with a parenthetical after the date: Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Cite the Constitution without a date when the provision is currently in force: U.S. Const. amend. XIV, § 1; U.S. Const. art. II, § 2, cl. 2. A repealed provision takes a date parenthetical.

What does a finished brief look like?

One page, roughly this dense. Using United States v. Lopez, 514 U.S. 549 (1995):

Provision: U.S. Const. art. I, § 8, cl. 3 (Commerce Clause); challenged action: 18 U.S.C. § 922(q), Gun-Free School Zones Act of 1990.
Posture: criminal conviction, motion to dismiss indictment denied, Fifth Circuit reversed, Court affirmed the Fifth Circuit; facial challenge to Congress's power.
Issue: May Congress, under the commerce power, criminalize possession of a firearm within 1,000 feet of a school?
Holding: No. 5–4, Rehnquist, C.J. Three categories of permissible regulation — channels, instrumentalities and persons or things in interstate commerce, and activities substantially affecting interstate commerce. Gun possession near a school is noneconomic, the statute contains no jurisdictional element, and Congress made no findings.
Separate opinions: Kennedy, J., joined by O'Connor, J., concurring, stressing federalism and the absence of a commercial connection; Thomas, J., concurring, urging a narrower original meaning of "commerce"; Breyer, J., dissenting, arguing a rational basis existed to find a substantial effect through education and the economy.
Effect on precedent: first Commerce Clause invalidation since 1937; distinguishes rather than overrules Wickard; later cabined by Raich.

How to Brief a Constitutional Law Case