- This advanced course in constitutional law examines the legal and political legacy of the Rehnquist Court (1987-2005). Readings will include scholarly assessments of the Court, including books by two current Justices (Scalia and Breyer) defending their differing approaches to constitutional interpretation. By the end of this course, students should understand how disagreements on the sharply divided Court reflect changes over time in the American political system and fundamental disagreements among the justices about what the Constitution means.
- This course is intended for students with prior background in constitutional law. The only formal prerequisite is POL 101. If you have done well in POL 346, 354, 460 or 461 you should be well-prepared. If you have not previously taken any law-related courses, you may find this class overly difficult.
- This course differs from most others you may have taken in several ways. This is a challenging course that requires your continual attendance and participation. In addition, this is not a lecture course. I have structured this course to rely on student participation and discussion. If you are reluctant to speak in class, you must overcome this if you want to succeed in law school or in any profession. I have included assignments that should give you some confidence--or at least advance notice--about expressing yourself before the class.
- Also, this is a reading-intensive and writing-intensive course. Each week’s class requires you to do a significant amount of reading. Each student will write three medium-length papers (5-8 pages) and give at least one class presentation over the course of the semester. All assignments will be graded on organization and style as well as substance of analysis.
- If you are not willing to commit to this level of work, drop this course now.
- Keck, Thomas. The Most Activist Supreme Court in History. University of Chicago. ISBN 0-226-42885-0
- Scalia, Antonin. A Matter of Interpretation. Princeton. ISBN 0-691-00400-5
- Breyer, Stephen. Active Liberty. Knopf. ISBN 0-307-26313-4
- Rosen, Jeffrey. The Most Democratic Branch: How the Courts Serve America. Oxford. ISBN 0-19-517443-7
- Additional readings on WebCT eCourses.
- O’Brien, David. Storm Center: The Supreme Court in American Politics. W.W. Norton. 6th ed. (2002) ISBN 0393978966, 7th ed. (2005) ISBN 0393927040
- Papers: Each student will write three analytical papers, each 5 to 8 double-spaced pages. Each paper will require you to understand an author’s thesis, assess the evidence supporting and opposing the thesis, and evaluate the author’s argument. I will provide more information about each assignment well before it is due.
- Participation: For each class session, I will assign two students to lead discussion on a part of the week’s reading. Assignments will be made at least a week in advance.
- Discussion leaders should circulate a 1-2 page agenda to all class members by email 24 hours before class. The agenda should include the following:
- What is the author’s argument in this chapter (or chapters)?
- How does this part of the work fit into the book’s larger thesis?
- What evidence does the author present to support his argument? Is there any evidence you’ve found (or discovered) against this thesis? What counterarguments does the author address—or not address?
- After reading this chapter, what questions would you like the author to answer that would allow you to understand it better?
- Give your own evaluation of the argument in this chapter. Is it effective as part of the author’s larger argument? Why or why not? Does this chapter present a persuasive argument? Why or why not?
- Attendance: Your attendance is mandatory. Class sessions will cover material not included in the readings, and this material will be essential for successful completion of required assignments. If you have difficulties with class attendance, drop the class now.
- Attendance is particularly important because this class meets just once a week. If you have unexcused absences for more than two classes, your course grade will be dropped by one full grade (i.e. from B to C). And for each additional unexcused absence, your grade will be dropped another half grade.
- I will take attendance twice each class session—at the beginning of class and after break. Students who arrive late or leave early will be charged one-half an absence.
- Cases: The readings will mention many Supreme Court cases. You can find excerpts from many of these cases in any constitutional law textbook or at these websites:
- If you are interested in current cases before the Court, you can find more information here: http://www.law.duke.edu/publiclaw/supremecourtonline/caselist.html
- Paper 1 20%
- Paper 2 30%
- Paper 3 30%
- Participation (including presentations) 20%
- reading on eCourses
Introduction to the Supreme Court: Law and politics
- Read: *Federalist 78
- Dahl, Decision Making in a Democracy: The Supreme Court as a National Policy Maker 6 Journal of Public Law 279 (1958)*
The New Deal Court
- Read: Keck, pp. 1-38
The Warren Court
- Read: Keck, pp. 38-107
The Nixon and Reagan Courts
- Read: Keck, pp. 107-199
The Rehnquist Court I
- Read: Keck, pp. 199-254
The Rehnquist Court II
- Read: Keck, pp. 254-297
- Scalia, Originalism: The Lesser Evil*
The originalist challenge
- Read: Scalia, pp. 3-49
- Scalia, pp. 49-63
- PAPER ONE
Objections to originalism
- Read: Scalia, pp. 65-151
- Barnett, Scalia’s Infidelity*
- Breyer, p. 3-15
The pragmatist challenge
- Breyer, pp. 15-39
- Breyer, pp. 39-115
The pragmatist challenge continued
- Breyer, pp. 115-135
- Video from Breyer-Scalia debate: http://www.acslaw.org/node/3909
What course for the Roberts Court?
- Read: Rosen, pp. 1-44
- PAPER TWO DUE
The above continued
- Read: Rosen, pp. 45-114
The above continued
- Read: Rosen, pp. 115-185
The above continued
- Current cases: Gonzalez v. Carhart
- Parents Involved in Community Schools v. Seattle School District No. 1
- Rosen, “Rehnquist the Great”* http://www.theatlantic.com/doc/200504/rosen
- Rosen, “Roberts Rules” Jan. 2007 Atlantic* http://www.theatlantic.com/doc/prem/200701/john-roberts
- Greenburg, “The Cause Bush Did Justice To” Jan. 21, 2007 Washington Post
FINAL PAPER DUE