The United States Supreme Court

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Medium:
Syllabus
Course Length:
15 weeks
Credits:
3
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COURSE OBJECTIVE:

  • This course will consist of both academic study of the Court and personal observation of the Court. The course will start with academic study (readings and lectures) at this university. These lectures will deal primarily with the questions: What is the judicial power? What is the jurisdiction of the federal courts and of the Supreme Court in particular? How are justices appointed? What is the procedure of the Supreme Court? How does it decide cases presented to it? What is the role of the Supreme Court in American politics? How has that role changed throughout American history? What are the major contemporary positions taken by various political scientists and legal scholars on this role?
  • The second part of the course will be a study tour of the Court in Washington from March 15-20, 2006 (Wed-Mon, during spring break, and one class day). This part of the course will include (tentatively): 1) a tour of the Supreme Court Building; 2) meeting and discussion with the following: an Associate Justice of the Supreme Court, the Clerk of the Supreme Court, a law clerk for one of the Justices, a reporter who covers the Supreme Court, government and private lawyers who have argued before the Court, representatives of interest groups interested in the Court’s work, Congressional committee staff members who have dealt with Court issues; and 3) observing oral arguments before the Court and the announcement of Court opinion.

 

EVALUATION:

1. Regular class attendance.

2. Careful and punctual reading of assignments. Each student will be expected to be able to give a brief oral summary of the different assigned readings each class.

3. Quizzes: Mondays, on the week’s reading (unexcused absence counts as zero–please submit written excuses) (20%).

4. One examination (multiple choice/true-false) on the lectures and readings (March 8 - 20%).

5. One book report (6-10 pages) on a particular Supreme Court case - see attached information - due March 15 (20%).

6. One 3-5 page paper (also to be delivered orally) on one of the arguments contained in Judicial Activism (see attached information) - March 22 - April 12 (10%).

7. One paper (10-20 pages) on the Role of the Supreme Court in American Politics (see attached information) - due April 24 (30%).

8. Class participation +/- one grade level (used almost exclusively in borderline cases; note: showing up late for the scheduled meetings in Washington will count as lower quality participation).

  • For law and graduate students only there is also required an additional book report, covering two books on theories of judicial review, one each from Category I and Category II on the attached list; this report should achieve the same goals as the other book report, with the additional goal of comparing and contrasting the two books. This is due at the next-to-last class, April 10.
  • The breakdown of the final grade for law and graduate students will be: Quizzes - 15%; Examination - 15%; Judicial Activism paper - 15%; First Book Report - 15%; Special Book Report - 15%; Final Paper - 25%
  • Note: since this is a different kind of course (due especially to the “travel” component), those who do not need this course for a major or core requirement or for graduate credit are encouraged to consider taking it pass/fail. (Pass/fail arrangements must be made by the close of late registration.)

 

READINGS:

  1. Baum, Lawrence The Supreme Court 8th ed.
  2. Bickel, Alexander The Least Dangerous Branch, chap. 1 (on library reserve)
  3. Publius The Federalist (available online at http://www.constitution.org/fed/federa00.htm)
  4. Woodward, Bob and Scott Armstrong, The Brethren [This book is out of print, but is easily obtainable from amazon.com or barnesandnoble.com, through their used/out-of-print sellers)
  5. Wolfe, Christopher The Rise of Modern Judicial Review, revised ed. (Rowman and Littlefield, 1994)
  6. Wolfe, Christopher Judicial Activism: Bulwark of Liberty or Precarious Security? rev. ed. (Rowman and Littlefield, 1997) - available in class
  7. Wolfe, Christopher “The Rehnquist Court and ‘Conservative Judicial Activism’” (library reserve)
  8. Scigliano, Robert The Supreme Court and the Presidency (chapter 1, on library reserve)
  9. selected Supreme Court cases (these can be viewed through the library website: go to journals and electronic resources, then law, then lexis-nexis, then legal research, then get a case; some of them are also on electronic reserve)
  • Jan. 18 Review Syllabus; Introduction;
    • The Court in the Constitutional Convention of 1787
  • Jan. 23 The Court in the Constitutional Convention of 1787; The Federalist Papers
  • Jan. 25 The Federalist Papers
  • Jan. 30 The Federalist Papers
  • Feb. 1 Appointment: Process, Criteria
  • Feb. 6 The Role of the Senate
  • Feb. 8 Supreme Court procedure
  • Feb. 13 Traditional Era: Interpretation
  • Feb. 15 Traditional Era: Judicial Review
  • Feb. 20 Traditional Era: The Critics
  • Feb. 22 Transitional Era
  • Feb. 27 Modern Era: The Roots
  • Mar. 1 Modern Era: Constitutional Interpretation
  • Mar. 6 Modern Era: Judicial Review
  • Mar. 8 MIDTERM
  • Mar. 15-20 TRIP TO D.C.
  • Mar. 22 Judicial Activism, chap. 1
  • Mar. 27 Judicial Activism, chap. 2
  • Mar. 29 Judicial Activism, chap. 3
  • Apr. 3 Judicial Activism, chap. 4
  • Apr. 5 Judicial Activism, chap. 5
  • Apr. 10 Law School Book Summaries
  • Apr. 12 Conclusion
  • Baum, chap. 1
  • The Federalist Papers #78-82
  • Scigliano, chap. 1
  • Baum, chaps. 2-3
  • Baum, chaps. 4-6
  • RMJR, Part One
  • McCulloch v. Md. (excerpts)
  • Marbury v. Madison
  • The Least Dangerous Branch, pp. 1-14
  • RMJR, Afterword
  • RMJR, Part Two
  • Lochner v. N.Y.
  • RMJR, chaps. 9-13
  • Missouri v. Holland
  • Brown v. Board of Education
  • RMJR, chap. 14
  • “The Rehnquist Court and ‘Conservative Judicial Activism’”
  • Planned Parenthood v. Casey (excerpts)
  • The Brethren
  • Judicial Activism, chap. 1
  • Judicial Activism, chaps. 2-3
  • Judicial Activism, chaps. 4-5

 

BOOK REPORT

  • By the first class meeting in Washington(March 15), you will be expected to write a 6-10 page book report, which is worth 20% of the final grade.
  • The attached list includes the books from which you may select a topic for this book report. If you know of another book on a particular Supreme Court case that you would like to choose for your book report, I will be happy to consider it, but you must first get my approval to use that book.
  • The book reports should be typed, double-spaced, and proofread carefully (for spelling and grammar as well as substantive problems). (I do not require that any particular style or format be used, other than good standard English.)
  • You should do two things in your book

1. You should give a good, accurate summary of the book. Obviously, in a 6-10 page book report, you will not be able to describe everything in the book. You should, however, indicate the topic of the book, the factual background that gave rise to the case it describes, the major steps as the case proceeded up to the Supreme Court, the different facets of the Supreme Court handling of the case, and the aftermath (all of these, of course, insofar as these are described in the book). While there are no absolute rules, I would estimate that you ought to spend about two-thirds to three-quarters of your book report on this section.

2. You should then provide your commentary on the book. What were the book's strengths and what were its weaknesses? Is the description of the case clear and comprehensive, as far as you can tell, or does the author leave some matters either unclear or simply undiscussed? Does the author have a running theme or point-of-view throughout the book? If so, that should be described carefully. Is the viewpoint a balanced one, or does the author give a one-sided view of the case and/or the constitutional issue involved? (I do not mean to imply that the author is one-sided simply because he has an opinion–I want to know whether he has made a good effort to indicate why some other reasonable person might take a different perspective on the case.) What did you learn about the Supreme Court by studying this book? Does the author's description either confirm (exemplify) or contradict some of the things you have learned so far in this course (the readings and lectures)? [These are not "the" questions you must deal with–they are simply examples of what you might discuss as a result of intelligent reflection on the book you read.]

  • In order to facilitate your reflection on the book, you must find at least one other source that describes the case in some detail, for example, another book, a chapter of a book, part of a biography, an extended description in an encyclopedia, or a substantial review of the book. (If you have any doubts about whether this other source is adequate, please consult with me.)
  • The book report is due March 15, at the first meeting of our trip in Washington. Late reports received by March 22 (at the first class after the trip) will be accepted but will be lowered a full letter grade. Reports will not be accepted after that time.

 

Book Report List

  1. Carter, Dan T. Scottsboro: A Tragedy of the American South (LSU Press, 1969)
  2. Cleary, Edward J. Beyond the Burning Cross: A Landmark Case of Race, Censorship, and the First Amendment (Random House, 1994)
  3. Craig, Barbara Chadha: The Story of an Epic Constitutional Struggle (Oxford University Press, 1988)
  4. Johnson, John W. The Struggle for Student Rights: Tinker v. DesMoines and the 1960s (University of Kansas Press, 1997)
  5. Kens, Paul Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (University Press of Kansas, 1990)
  6. Kluger, Richard Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Knopf, 1976)
  7. Rudenstine, David The Day the Presses Stopped: A History of the Pentagon Papers Case (Univ. of Calif. Press, 1996)
  8. Strum, Philippa Women in the Barracks: The VMI Case and Equal Rights (University Press of Kansas, 2002)
  9. Swanson, Wayne R. The Christ Child Goes to Court (Temple University Press, 1990)
  10. Westin, Alan F. The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co. v. Sawyer (Macmillan, 1958)

 

PAPER/ORAL PRESENTATION ON ONE OF THE ARGUMENTS IN JUDICIAL ACTIVISM

  • In class, between March 22 and April 5, each student will be expected to make a 5-10 minute presentation summarizing a 3-5 page paper on one of the arguments in Judicial Activism.
  • In this paper, you will note the argument in the text, and also the responses to it in the text, and then you will “push the analysis further in some way.” This can be done by offering empirical evidence that either supports or undermines the argument (always noting the possible opposing arguments). Or it can be done by offering further analysis of the argument and its strengths and weaknesses.
  • (Note: in a certain sense, this short paper is a “dry run” for your final paper, since it asks you to do the same analytical sort of work. The longer paper will be more comprehensive, however, whereas this paper will focus on only one of the arguments.)

 

FINAL PAPER

  • Topic: The Role of the Supreme Court in American Government
  • Length: perhaps 10 - 20 pages (probably a good job will be closer to the latter; but I'm not concerned with quantity as much as with quality). They should definitely be typed, double-spaced, and proofread.
  • Due Date: Friday, April 22, 2005 (by 4:30 p.m., in my mailbox in the political science office)
  • Resources to be used: Lectures, readings, meetings with people in Washington, and - last but not least - your careful reflection thereon. (You are free, of course, to use other materials, giving them proper citation, but you need not do so. The emphasis is not on new research, but on your reflection and analysis.)
  • Questions to discuss:
    • What has the role of the Supreme Court been, in fact?; or, perhaps, what have its different roles at different times been?
    • What should the role of the Supreme Court
  • Note well: When addressing yourself to both of the above issues–both the "empirical" one and the "normative" one--be sure to demonstrate your awareness that there are various possible answers to these questions, each having its own strengths and weaknesses. After surveying these different possible answers in a balanced, even-handed manner (trying to state even views you may sharply disagree with, in an intelligent form), then give your own reasoned opinion on these questions.
  • ("Helpful Hint": before you state your own position, sit down and try to write out - or at least outline - the strongest possible case you can give for "the other side" (the one you don’t agree with); then force yourself to answer this case carefully point by point, taking into account the strongest possible counter-arguments an opponent might use to each of your arguments. If you do this before you write your paper, you may be surprised--and impressed--at how much better your paper will be.)

For Law and Graduate Students

  • Law and graduate students should write a review essay comparing two books, one each from the two categories below. (The first category contains books that are generally in the “judicial restraint” class and the second category contains books that are generally in the “judicial activism class.) You should summarize each book and discuss it, much as you do with the other book report. But in this case you should also try to bring the books to bear on each other, asking what the implications of the different books’ arguments are for each other, and what the strengths and weaknesses of those arguments are.
  • I would like to have different books covered by different students, so please “sign up” for a book as soon as you have made your decision.
  • You will also make a 15-minute presentation on your two books for the April 10 class, so that the undergraduate students have the opportunity to benefit from your study!

 

Books on Theories of Judicial Review

Category I

  • Agresto, John The Supreme Court and Constitutional Democracy (Cornell University Press, 1984)
  • Berger, Raoul Government By Judiciary (Harvard University Press, 1977)
  • Bork, Robert The Tempting of America (Free Press, 1990)
  • Horowitz, Donald The Courts and Social Policy (Brookings Institution, 1977)
  • Maltz, Earl Rethinking Constitutional Law (University of Kansas Press, 1994)
  • Rosenberg, Gerald The Hollow Hope (University of Chicago Press, 1991)
  • Scalia, Antonin A Matter of Interpretation (Princeton University Press, 1997)
  • Tushnet, Mark Taking the Constitution Away from the Courts (Princeton University Press, 1999)
  • Whittington, Keith Constitutional Interpretation: Textual Meaning, Original Intent, And Judicial Review (University Press of Kansas, 1999)

Category II

  • Bickel, Alexander The Least Dangerous Branch (Bobbs-Merrill, 1962)
  • Chemerinsky, Erwin Interpreting the Constitution (Praeger, 1987)
  • Choper, Jesse Judicial Review and the National Political Process (University of Chicago Press, 1980)
  • Dworkin, Ronald Taking Rights Seriously (Harvard University Press, 1977)
  • Ely, John Hart Democracy and Distrust (Harvard University Press, 1980)
  • Lusky, Louis By What Right? (The Michie Co., 1975)
  • Peretti, Terri Jennings In Defense of a Political Court (Princeton University Press, 1999)
  • Tribe, Laurence and Michael Dorf On Reading the Constitution (Harvard University Press, 1991)
  • Wellington, Harry Interpreting the Constitution (Yale University Press, 1990)