History & Political Science
PS 341 (CRN 1500)/His 388 (CRN 1487): Constitution and the Supreme Court
Taylor 26: TuTh 3:30-5:20
Office: TA 120A (Hours: M 2-4, W 12-2, F 11:30-12:30)
OBJECTIVES: This course examines the historical and contemporary role of the United States Supreme Court in adjudicating disputes of Constitutional magnitude. The Supreme Court occupies the intersection of law and politics in America. On the one hand it is the highest court in the land, and therefore must have powerful influence on the development of law. On the other it is juxtaposed to Congress and the President by the Constitution and since the beginning of the Republic has been drawn into political controversies as ally or obstacle. The goal of the class is to sift through (1) the conceptual jungle surrounding, (2) the normative demands imposed upon and (3) the history of the Court in order to better understand its role in American Society.
TEXT: There is no text for the class. All reading assignments will be linked to the class web site. Most are primary sources. Assignments must read carefully and perhaps several times in order to capture their full significance. An online legal dictionary is available here.
PEDAGOGY: Class will be conducted in a combination of lectures, classroom discussions, and "Socratic" dialogues. For those unfamiliar with Socratic method, students are called upon to answer a series of questions raised by or about the reading for the day. This process enhances student capacity to recognize and analyze questions and issues in forms other than those presented by the readings.
STUDENT EVALUATION: Students will be evaluated on the basis of three take home exams (worth 20, 25 & 35 points respectively), and four "briefs" of Supreme Court decisions (5 points each), as well as participation in Socratic Dialogues. The take home exams are to be typed and will be accompanied by detailed instructions. All exams will be problem solving type problems encouraging students to think critically through a Constitutional problem. You will be asked to analyze the issues triggered by the problem, identifying various ways to frame and solve the problem. No outside research is necessary or helpful for the exams.
Descriptions of briefs are linked here and here. Briefs consist of a concise summary of the significant aspects of an appellate court opinion assigned to the entire class. Each brief should be brief! Your goal should be to reduce them to no more than one typed page. Students are warned not to become neurotic attempting to achieve that goal. Each brief should be divided into 6 distinct sections summarizing: (1) Facts, (2) Action, (3) Issue(s), (4) Holding, (5) Reasoning, and (6) Dissents & Concurrences.
For the Socratic Dialogue component, students will be required to respond orally to a series of questions drawn from the reading for the day. Each day two or three students will be expected to take the lead in discussing that reading assignment. These students in effect think out loud and teach their peers the material for the day. Each student is expected to become one of the principal participants in four or five class discussions during the term. Students, who fail to participate, or participate in a grossly deficient manner, will lose points earned elsewhere in the class.
EFFECTIVE NOVEMBER 1, THE SYLLABUS IS MODIFIED TO ALLOW STUDENTS TO EARN EXTRA CREDIT BY COMPLETING ADDITIONAL BRIEFS BEYOND THE FOUR "REQUIRED." STUDENTS MAY EARN UP TO TEN ADDITIONAL POINTS BY BRIEFING NO MORE THAN TWO ADDITIONAL CASES.
THE EXTRA CREDIT BRIEFS MUST BE MARKED WITH AN "XC" AT THE TOP OF THE PAGE AT THE TIME THEY ARE TURNED IN. THEY MUST BE TURNED IN ON THE FIRST CLASS DAY AFTER WE HAVE FINISHED DISCUSSING THE CASE, JUST AS "REQUIRED" BRIEFS ARE DUE. A BRIEF THAT DOES NOT APPEAR TO BE AN HONEST EFFORT TO SUMMARIZE THE CASE WILL EARN 0 POINTS. STUDENTS WILL NOT GET POINTS "JUST FOR TRYING."
THE POINTS EARNED ON EXTRA CREDIT BRIEFS WILL BE ADDED TO THE STUDENT'S POINT TOTAL ONLY AFTER THE CURVE FOR THE CLASS IS ESTABLISHED AND A STUDENT'S POINT TOTAL IS LOCATED ON THE CURVE. THUS A STUDENT WHO HAS ACCUMULATED EXTRA CREDIT POINTS HAS THE OPPORTUNITY TO MOVE UP THE CURVE BASED UPON THE ADDITIONAL BRIEFS. THE CURVE ITSELF IS FIXED BASED UPON AGGREGATE STUDENT PERFORMANCE ON THE THREE TAKE HOME EXERCISES AND THE FOUR REQUIRED BRIEFS.
IF YOU HAVE QUESTIONS PLEASE CONTACT THE INSTRUCTOR.
Here are some general cautions regarding grading:
(A) Students should keep a copy of all written exercises. The burden of loss of any missing written work will rest entirely on the student.
(B) Class grades will be assigned based upon a rough curve comparing point totals accumulated by students over the entire term. No individual exam will be assigned a letter grade. Rather you will be given a point total. After each exam, students will be shown two "curves" enabling them (1) to compare their point totals with others for the discrete exam and (2) compare their cumulative point totals for all exams given by that point in the term.
(C) Other than as discussed in connection with class participation, class attendance is not considered when evaluating students. You will be treated as mature individuals, capable of choosing responsibly whether to attend class on a given day. Students should recognize that class meetings also serve as a medium for communicating to them about the class. Information concerning the class, not contained in the syllabus, is generally communicated at one class meeting and noted on the class website, but not repeated elsewhere. This may include additional reading assignments, handouts, information on take home exercises, modifications in the syllabus and assignment of "Socratic Dialogue" participation. Students bear the entire responsibility to ensure that they understand the requirements for the class by either attending regularly or making other arrangements to ascertain how the course is moving.
(D) The principles espoused in the SOU policy on academic dishonesty are applicable to this class.If you are in need of academic support because of a documented disability (whether it is psychiatric, learning, mobility, health-related, or sensory), you may be eligible for academic accommodations through disability services for students. Contact Disability Services for Students; Director, DSS; 552-6213; or schedule an appointment in person at the ACCESS Center, Stevenson Union, Lower Level.
(Subject to change with very little notice)
September 25: Overview of the course including a concise history of the United States Supreme Court.
Part I: The origins of the US Supreme Court and other federal courts (September 27- October 11)
September 27-October 2: The Framers and the Constitution
What did founders of the Republic have in mind for the court system of the national government and the Supreme Court in particular?
What is the jurisdiction of the Supreme Court? (What does jurisdiction mean?!)
What was the intended relationship between the Supreme Court and state courts?
What was the intended relationship between Congress and the Supreme Court?
Oct 2-9 Judicial Review: The Supreme Court in the Crucible. At the time of the framing of the Constitution, the concept of Judicial Review was evolving to address modernizing and increasingly democratic political institutions. Its antecedents are clear but controversial in English common law. Its problematic history presented a myriad of problems for the framers of the Constitution. Judicial Review brings into sharp focus the question that defines the course: What is the appropriate role for the federal courts in particular the Supreme Court, in our form of constitutional governance? Here we focus on the earliest efforts to answer that question examining two significant influences on the Supreme Court and the exercise of Judicial Review: Alexander Hamilton and John Marshall.
What (precisely) is judicial review?
How does the English history of judicial review complicate the American experience with it?
Was Alexander Hamilton writing on a clean slate when he argued for judicial review in Federalist 78?
How about that John Marshall?
EXAM #1 DISTRIBUTED OCTOBER 9, DUE OCTOBER 11 AT BEGINNING OF CLASS (20 points)
Part II: The scope and limits of judicial review: the Supreme Court (with a little help from its friends) balances its legal and political role (take #1)
October 11-18: Dred Scott v Sandford: A very bad day for the Supreme Court! Or was it?
Can you identify the two issues in Dred Scott?
What should Justice Taney have done differently?
Do you know when less might have been more?
How could the Supreme Court “solve” the slavery problem?
What is the purpose of “judicial self-restraint?”
How does the Court exercise self restraint?
READ: Dred Scott v Sandford,
October 18-23 Political Questions. Dred Scott is a powerful reminder that the Court’s history of the exercise of judicial review is fraught with peril and full of controversy. All exercises of judicial review will generate controversy and raise questions about its legitimacy. The Court has developed tools of self-restraint beyond Ashwander to conserve its political capital and ensure it is acting within the parameters of its mission under the Constitution. We will examine episodes of restraint to understand the benefits and perils of not acting. One such situation is when the Court determines that to resolve a dispute it would not be acting as a judicial body, but rather political entity invading the prerogative of Congress and the President. Making that distinction in practice is not as easy as articulating it as an abstract proposition.
What is the Constitutional basis of the Political Question doctrine?
Why isn’t every decision of the Supreme Court a Political Question?
Does the invocation of the Political Question doctrine violate the Court’s duty to resolve cases and controversies arising under the laws of the land?
October 23-25 Standing: Some lawsuits appear to be disputes appropriate for judicial resolution, but upon after a second look may not in fact be traditional lawsuits. They are an attempt by officious intermeddlers to get a second bite at a policy question they lost in legislative or executive branches (or both).
Who can invoke the Court’s authority to exercise judicial review?
What characteristics or qualities should lawsuits possess in order to authorize courts to resolve disputes that substantially circumscribe the authority of the political branches of government?
READING: Lujan v Defenders of Wildlife
October 25-30 Congressional limits on the federal court jurisdiction. Pursuant to Article III section 2, Congress exercises authority over the jurisdiction of all federal courts. The Supreme Court and all federal courts have limited jurisdiction.
What does that mean, precisely?
Is Congress free to manage the agenda of all federal courts without restriction?
What becomes of separation of powers or the Bill of Rights if Congress has plenary power over the courts’ jurisdiction?
EXAM #2 DISTRIBUTED OCTOBER 26, DUE FRIDAY, NOVEMBER 2 AT NOON IN MY OFFICE (25 points)
Part III: The scope and limits of judicial review: the Supreme Court (with a little help from its friends) balances its legal and political role and exercise’s Hamilton’s judgment (or not?).
November 1: An overview of the modern Supreme Court structure and processes; following a case from trial to final review by the Court, examining the logic and internal norms of the Supreme Court.
November 6-8 Liberty and Property: oasis from government interference or government by Platonic guardians? After the Civil War, the Supreme Court began to show increased willingness to adjudicate the constitutional interests associated with the growing United States national economy.
Were the principles of laissez-faire capitalism enshrined in the Constitution for the Supreme Court to protect and nourish?
How would one know?
How does one exercise judgment to find them?
Was Lochner the second coming of Dred Scott?
November 13-15 After a half century engagement overseeing the economy, the Supreme Court confronted another social controversy brought on by the converging phenomena of privacy and science.
When and how should the court system intervene to protect individuals from Big Brother?
What kinds of activities, associations and decisions are “private” in the sense that government can’t control them? Where does the Constitution answer that question?
November 20-December 1: Privacy after Griswold. In Griswold, the Supreme Court identified a “right of privacy.” It opened the door to other claims of immunity from government interference. In order to legitimate its interpretation of the Constitution that invalidating the interpretation of a legislature’s, the Court must demonstrate that its s explication of the nation’s fundamental law is superior. In doing so the Court may need to justify departures from any of its earlier interpretations of the Constitution. The abortion decisions provide an opportunity to examine the court’s approaches to these problems.
Should the Supreme Court interpret the Constitution to include protection of a pregnant woman’s decision to terminate her pregnancy? Why? How would we know if this is a legitimate exercise of judicial review?
When and how should a court “back down” from an earlier decision?
Was Roe the second (or third) coming of Dred Scott?
November 29 Third Exam Distributed; Due Tuesday, December 4 at 5 pm in Taylor 133. (35 points)