Class Time and Location: T, Th 11:00-12:20, Eggers 018

Course Content and Objectives

In this course, we will examine the role of the Supreme Court in American politics. In doing so, we will try to get a better understanding of the Court's dual character as both a legal and political institution. On the one hand, the nine justices constitute a court of law, duty-bound to resolve certain disputes by applying existing legal rules. On the other hand, they seem to have an awful lot of power to settle some of our nation's most divisive political conflicts--over affirmative action or gay rights, for example, or even the outcome of a presidential election. By the end of the semester, you should know a lot more about both how the Court works internally and what role it has played in the political system more broadly.

Course Readings

The following required books have been ordered at the SU Bookstore:

• Jeffrey Rosen. 2006. The Most Democratic Branch: How the Courts Serve America. Oxford University Press. ISBN: 978-0-195-17443-4.
• Gerald N. Rosenberg. 1991. The Hollow Hope: Can Courts Bring About Social Change? University of Chicago Press. ISBN: 0-226-72703-3.

Each of the required books will be available on 2-hour reserve at Bird Library as well. In addition, some of the required readings for the course will be available on electronic reserve; others will be handed out in class; and still others are available on the internet and are linked from the on-line version of this syllabus. If you find any links in the syllabus that are not working, please let me know ASAP. It is your responsibility to obtain (and read!) the required readings prior to the day that we discuss them in class.

My home page has a long list of helpful links, but the following websites may be of particularly interest:

• U.S. Supreme Court (official website)

• SCOTUS Blog (the favorite blog of Supreme Court junkies everywhere)

• Lexis Nexis (the best source for decisions from all levels of the state and federal judiciary)

• Oyez (audio files of hundreds of Supreme Court oral arguments)

• On the Docket (info on upcoming cases)

 Course Requirements

Course grades will be based on a semester-long simulation assignment (60%) and a take-home final exam (40%).

For the simulation assignment, each student will be assigned to play a role as a lawyer, a justice, a law clerk, or a member of the media, and our simulated Court will decide several cases throughout the course of the semester. Further details will be forthcoming shortly; for now, you should be aware that this assignment will require a substantial written component, and for most roles, some significant in-class oral presentations as well. Your grade for the assignment will be based on your total performance on all elements, and will be determined in part by a peer evaluation from your fellow students. In addition, I plan to nominate the student who puts in the best performance, again determined in part by peer evaluations, for a department award.

The final exam will be an open-book, take-home essay, designed to assess your ability to integrate and comment upon the material from our readings, lectures, films, and anything else covered in class. The essay will be distributed during the last week of classes and will be due during the final exam period. I will provide further details as the time approaches.

Course Policies

Attendance policy: More so than in most courses, regular attendance will be very important in this class. Much of our class time will be devoted to the simulation assignment, and it will often be impossible to make up this time once you have missed it. For the simulation to function smoothly (and for you to get a good grade), you need to be here as often as humanly possible. In addition, our classroom lectures and discussions will often emphasize material that is not covered in the course readings, and I will grade the final exam on the assumption that you have mastered all of this material.

Class participation: All students are expected to participate in class discussion. This does not mean that you have to come to class with a fully developed point of view about every issue addressed in the reading. It does mean that you need to complete the readings prior to class and come prepared with some thoughts or questions in response to those readings. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, or for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material. Since we will spend a good bit of time discussing the contemporary Supreme Court, I also recommend that you read some regular and reputable coverage of the Court's current term. There are a variety of outlets where you can find such coverage, but my own favorites are the New York Times (whose Linda Greenhouse is the most reliable Supreme Court correspondent around); Slate (whose Dahlia Lithwick is the most entertaining); and SCOTUS Blog (whose bloggers provide the most comprehensive coverage anywhere). 

Late paper policy: Because most of the written work for this class is connected to the simulation assignment, and because the various pieces of that assignment are closely linked with one another, it is more important than usual that students turn in all work on time. As such, these deadlines will be extended only under unusual circumstances, and only with my explicit permission (so don't bother pleading with the TA).

Grading policy: Your written work for the simulation assignment will be graded, initially, by the teaching assistant for the course. If you have questions about any of these assignments before they are due, you are welcome to speak with either me or the TA (or both of us). If you have questions after the assignments have been graded, you are again welcome to speak with either of us, unless you are contesting your grade, in which case you should bring that concern to me. If you choose to appeal the grade assigned by the TA, I will re-grade the assignment from scratch, which means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. All schedules and  locations are posted on the TSC website.

Academic integrity: University-wide policy provides that "academic integrity is expected of every community member in all endeavors. Academic integrity includes a commitment to the values of honesty, trustworthiness, fairness, and respect," a commitment which "is violated by any dishonest act which is committed in an academic context." Examples of such violations include copying from another student's work, unauthorized cooperation in completing assignments or examinations, and submitting the same written work in more than one course without prior written approval from both instructors. In my experience, the most common form of academic misconduct is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the CAS academic integrity coordinator for additional action. For further details on the policy, consult the SU Office of Academic Integrity and the CAS Resource Guide for Promoting Academic Honesty.)

Student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. 

Reasonable accommodation: If you have any disability that may prevent you from fully demonstrating your abilities in this course, you should contact me as soon as possible to discuss accommodations necessary to ensure your full participation and to facilitate your educational opportunities.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. In addition, I will regularly use Blackboard's "Send email" feature to contact all members of the class. This means that you are responsible for regularly checking your SU email account.

Course Schedule

Tuesday, August 28: Introduction. No reading.

Thursday, August 30: I'll be in Chicago for a political science conference today, but class will still meet. You'll be watching an episode of a recent documentary on The Supreme Court.

I. Three Ways to Think About the Supreme Court

Tuesday, September 4

A. "the bulwark of a limited Constitution against legislative encroachments"

• Alexander Hamilton, The Federalist #78 (or here or here or here)

Thursday, September 6

B. "a de facto judicial tyranny"

• Mark Levin, Men in Black, ch. 1-2 (handout)

Tuesday, September 11

C. "the Supreme Court follows the election returns"

• Rosen, The Most Democratic Branch, ix-17
• Rosenberg, The Hollow Hope, xi-38

II. Inside the High Court

Here, we'll learn some nuts and bolts regarding how a case makes its way to, and through, the Supreme Court. As we focus on the details of the process, keep in mind the broader questions we've been thinking about regarding the causes and consequences of the Court's decisions.

Thursday, September 13

A. Where do the cases come from? A clerk's eye view (and a justice's too)

Is there anything surprising in these insiders' accounts of how the Court works? We'll talk primarily about the cert. process--that is, the process by which the justices (or their clerks?) decide whether to grant a petition for a writ of certiorari, the formal legal document that is usually filed by someone asking the high Court to hear her case. It would probably be helpful for everyone to read (or at least skim) an actual cert. petition, such as this one for Hamdan v. Rumsfeld (filed August 8, 2005). The best account of the Court's cert. process, based on extensive interviews with both justices and clerks, is H.W. Perry's Deciding to Decide. For additional descriptions of the Court from the justices' perspective, you might try William Rehnquist's The Supreme Court or Ruth Bader Ginsburg's "An Overview of Court Review for Constitutionality in the United States."  Note also Richard Posner's review of two recent books on the increasingly significant role played by the justices' clerks, and see David Garrow's "The Brains Behind Blackmun" for a particularly searing indictment on this score.

• Edward Lazarus, "A Clerk's Eye View," from Closed Chambers (handout)

• Stephen Breyer, "The Work of the Supreme Court" (handout)

Tuesday, September 18

B. Where do the justices come from?

The report below is quite long, so just skim it to learn as much as you can about the history of the Supreme Court appointment process. Also, everyone should try to attend this event at 4:00 p.m. today: Supreme Makeover: Inventing a New Model of Judicial Openness on the High Court?, Grant Auditorium, College of Law, sponsored by SU's Institute for the Study of the Judiciary, Politics, and the Media.

• Congressional Research Service report, "Supreme Court Appointment Process- Roles of the President, Judiciary Committee, and Senate" (June 25, 2007) (on line)

Wednesday, September 19: At 2:00 p.m. in Hendricks Chapel, Chief Justice John Roberts will give the keynote address at the dedication ceremony for the Newhouse III building. Tickets will be available at the Schine Box Office starting September 12. In addition, overflow seating, which is open to the public and does not require tickets, will be available in the Schine Student Center's Goldstein Auditorium. The speech also will be simulcast on campus televisions and webcast here.

Thursday, September 20

C. What do the lawyers do? The arguments, written and oral

Before becoming a federal judge, John Roberts was one of the leading oral advocates in the Supreme Court bar. That is, he was one of the most successful lawyers in arguing cases before the Supreme Court. As such, I thought it might be worthwhile to read his reflections on the role of oral argument in the Court's decision-making process. It might be helpful to listen to one of his actual performances as well. The Oyez Project has a great archive of audio recordings of oral arguments, including this one in Rice v. Cayetano (2000). For another  first hand account of what it's like to argue before the Court, try Lawrence Lessig's "How I Lost the Big One," reflecting on his own oral argument performance in Eldred v. Ashcroft (2003). With Roberts now on the Court, the leading oral advocates today include Carter Phillips and Tom Goldstein, the latter of whom founded SCOTUS Blog. The article by Noam Scheiber describes their different styles of work, noting in particular Goldstein's increasingly significant influence on the Court.

• John G. Roberts, Jr., "Oral Advocacy and the Re-emergence of a Supreme Court Bar" (on line)

• Noam Scheiber, "The Hustler" (on line)

Tuesday, September 25

Simulation assignment: Cert. petitions are due from petitioners in all cases today. To see a real-world cert. petition (from Hamdan v. Rumsfeld), click here.

D. What do the justices do? Decision-making and opinion-drafting

We'll focus today on the process by which the justices decide cases and draft the opinions announcing those decisions. This process occurs almost entirely in secrecy, but after they have left the Court, some of the justices have allowed scholars and the public to see their private memos, letters, opinion drafts, and the like. The two chapters below are each based on this documentary record. If you'd like to see what some of these documents actually look like, I recommend browsing the on-line archives from the papers of Justices Tom Clark or Harry Blackmun. 

• Bernard Schwartz, "Rehnquist and Roe," from Decision (handout)

• Walter Murphy, "Marshalling the Court," from Elements of Judicial Strategy (handout)

III. Two Hundred Years of Judicial Activism: From Marbury v. Madison (1803) to Lawrence v. Texas (2003)

For the rest of the semester, we'll look in some detail at a half-dozen or so of the Court's most controversial decisions. In each case, our goal will be to evaluate the degree to which these decisions have actually had the unfortunate causes and consequences that have so often been attributed to them.

Thursday, September 27

Simulation assignment: Respondents' briefs on cert. are due in all cases today.

A. Marbury v. Madison (1803)

Though the term didn't exist yet, the Marshall Court's early assertions of judicial power were widely derided as activist. Today, they are widely considered great landmarks in the Court's history. Are either of those judgments warranted?

• Rosen, The Most Democratic Branch, 19-30

• Michael Klarman, "How Great Were the 'Great' Marshall Court Decisions?" (on line)

Tuesday, October 2

Simulation assignment: Amicus curiae briefs supporting or opposing cert. in all cases are due today.

B. Dred Scott v. Sandford (1857)

In his 1990 book reflecting on the history of the Court and on his own failed nomination, Robert Bork articulates the standard view of the Dred Scott decision as the Court's single gravest "self-inflicted wound." On what basis does Mark Graber disagree with this account? And where does Rosen come down in this debate? Note that you need not read the full chapters from the Bork and Graber books. For Bork, read pp. 28-34; for Graber, 15-46. In addition to the antebellum Court's treatment of slaves, we may touch on its treatment of Native Americans as well. If you have a chance, skim Stephen Breyer's "'For Their Own Good': The Cherokees, the Supreme Court, and the early history of American conscience."

• Robert Bork, "Creation and Fall," from The Tempting of America, pp. 28-34 (electronic reserve)

• Rosen, The Most Democratic Branch, 30-37

• Mark Graber, "The Lessons of Dred Scott," from Dred Scott and the Problem of Constitutional Evil, pp. 15-46 (electronic reserve)

Thursday, October 4

Simulation assignment: Cert. memos from clerks are due in all cases today.

C. Lochner v. New York (1905)

Lochner is less famous than some of the other cases we're discussing, but scholars and judges have long considered it one of the Court's most activist decisions. The charge was first leveled by Justice Holmes in his dissent from the Court's decision. As such, that dissent is well worth reading; to find it, click here and then page down to the last couple pages of the decision. More recently, Bork has echoed Holmes's charge against his colleagues and has argued that Lochner, like Dred Scott, was a precursor of Roe v. Wade. Is that judgment accurate?

• Robert Bork, "Creation and Fall," from The Tempting of America, pp. 36-49 (electronic reserve)

• Rosen, The Most Democratic Branch, 38-44

D. Brown v. Board of Education (1954)

Tuesday, October 9

Simulation assignment: The Court's cert. decisions will be announced today.

1. The legal landscape and the political context

• Rosen, The Most Democratic Branch, 45-80

Thursday, October 11

2. The decision-making process

• Michael Klarman, "Brown vs. Board of Education: Law or Politics?" (on line)

3. The impact

Tuesday, October 16

a. Did the Brown decision desegregate the schools?

If you're interested in Rosenberg's account of the impact of the Court's civil rights decisions, you might also check out Michael Klarman's "The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking."

• Rosenberg, The Hollow Hope, 39-106

Wednesday, October 17

Simulation assignment: Petitioner's brief in Crawford v. Marion County is due today.

Thursday, October 18

b. Did the Brown decision have any impact?

Rosenberg's pessimistic assessment of Brown's impact is now more or less conventional wisdom among Court scholars. For an excellent summary of some of this recent literature, I recommend Cass Sunstein's “Did Brown Matter?”

• Rosenberg, The Hollow Hope, 107-172

Friday, October 19

Simulation assignment: Respondent's brief in Crawford is due today. To see a real-world respondents' brief (from Hamdan v. Rumsfeld), click here.

E. Roe v. Wade (1973) and its progeny

Tuesday, October 23

Simulation assignment: Amicus briefs and optional reply briefs from petitioners in Crawford are due today. To see a real-world reply brief (from Hamdan v. Rumsfeld), click here. In addition, petitioner's brief in PP v. Rounds is due today.

1. The legal landscape and the political context

• Rosen, The Most Democratic Branch, 81-113

• Mark Levin, "Death by Privacy," from Men in Black (electronic reserve)

Thursday, October 25: Oral argument day!

Simulation assignment: We'll hold oral arguments and a press conference in Crawford v. Marion County today. Clerks' bench memos on that case are due today. In addition, respondent's brief in PP v. Rounds is due today.

• Lawyers who will be arguing should read John Roberts's "Thoughts on Presenting an Effective Oral Argument."

• Everyone else should read the Seventh Circuit's decision in Crawford

Tuesday, October 30

Simulation assignment: Amicus briefs and optional reply briefs from petitioners in PP v. Rounds are due today. In addition, petitioner's brief in Medellin v. Texas is due today.

2. The decision-making process

We'll focus here on the Court's landmark 1973 decision, but we'll touch on the Court's decision-making in subsequent abortion cases as well, especially Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992). Be sure to review Bernard Schwartz's account of Webster in Decision. For a nice account of the Court's decision-making in Casey, I recommend Lazarus's Closed Chambers.

• Linda Greenhouse, "The Road to Roe," from Becoming Justice Blackmun (electronic reserve)

Thursday, November 1: Oral argument day!

Simulation assignment: We'll hold oral arguments and a press conference in Planned Parenthood v. Rounds today. Clerks' bench memos on that case are due today. In addition, respondent's brief in Medellin v. Texas is due today.

• Everyone should read (or at least skim) the Eighth Circuit's decision in Planned Parenthood v. Rounds

Tuesday, November 6

Simulation assignment: Amicus briefs and optional reply briefs from petitioners in Medellin v. Texas are due today. In addition, petitioner's brief in Boumediene v. Bush is due today.

3. The impact

• Rosenberg, The Hollow Hope, 173-201

Thursday, November 8: Oral argument day!

Simulation assignment: We'll hold oral arguments and a press conference in Medellin v. Texas today. Clerks' bench memos on that case are due today. In addition, respondent's brief in Boumediene v. Bush is due today.

• Readings TBA.

F. Bush v. Gore (2000)

Tuesday, November 13

Simulation assignment: Amicus briefs and optional reply briefs from petitioners in Boumediene v. Bush are due today.

1. The legal landscape and the political context

• Rosen, The Most Democratic Branch, 115-150

Thursday, November 15: Oral argument day!

Simulation assignment: We'll hold oral arguments and a press conference in Boumediene v. Bush today. Clerks' bench memos on that case are due today.

• Readings TBA.

Tuesday, November 20

Simulation assignment: Justices and clerks should be hard at work on their drafts of majority, concurring, and dissenting opinions. Whenever the opinions are done in a given case, the decision can be announced. Until that time, the opinion drafts should not be circulated outside the Court.

2. The decision-making process and the impact

Having combined two days reading into one, this is a lot of material. Try to skim all three articles, and choose one to read closely. Given what we know about the Court's internal deliberations in Bush v. Gore, how does it compare to some of the Court's other allegedly activist decisions?

• Howard Gillman, "The Dam Breaks: Five Justices Pick a President," from The Votes that Counted (electronic reserve)

• David Margolick, et al., "The Path to Florida," Vanity Fair (2004) (electronic reserve)

• Herbert Kritzer, "The impact of Bush v. Gore on public perceptions and knowledge of the Supreme Court," Judicature (2001) (electronic reserve)

Thursday, November 22: Happy Thanksgiving!

Tuesday, November 27

Simulation assignment: Drafts of all majority opinions are due from justices today. (And remember, these should not be circulated outside the Court.)

G. Lawrence v. Texas (2003)

In addition to the article by Klarman below, be sure to review Rosen's chapter three. For a representative criticism of the Lawrence decision as illegitimate activism, see chapter five in Levin's Men in Black.

• Michael Klarman, "Brown and Lawrence (and Goodridge)" (on line) 

Thursday, November 29

Simulation assignment: Drafts of all concurring and dissenting opinions are due from justices today. (And remember, these should not be circulated outside the Court.)

IV. The Court of Today and Tomorrow

It's early yet, but we'll try to assess the performance so far of the Roberts Court and think about whether and how that Court will play a significant role in American politics over the next twenty years or so. In addition to the readings below, you might check out the concluding chapter of Jeffrey Rosen's The Supreme Court: The Personalities and Rivalries that Defined America. 

• Rosenberg, The Hollow Hope, 336-343
• Jeffrey Rosen, "Roberts's Rules" (on line)
• Simon Lazarus, "More Polarizing than Rehnquist" (on line)
• David Von Drehle, "The Incredibly Shrinking Court" (on line)

Tuesday, December 4: Opinion day!

Simulation assignment: Justices' final written opinions are due in all cases today. In announcing the decisions, the justices will read excerpts of their opinions from the bench. Simulation self- and peer-assessment form will be distributed today.

Thursday, December 6

Simulation assignment: Press conference with all lawyers from all cases. Our media correspondents should distribute their final stories by tonight or tomorrow at the latest. Simulation self- and peer-assessment form is due today.

Take-home final exam will be distributed in class today.

Friday, December 14, 12:00 p.m.: Take home final exam due in my mailbox (100 Eggers Hall).