Class Time and Location: T, Th 2:00-3:20, HL 102

Course Content and Objectives

The principal goal of this course is to give students an inside look at the U.S. Supreme Court, or as close to that as we can get without actually being inside the Court. We'll do so in part by reading and talking about the actual Court, and in part by simulating the Court here in our classroom, with students playing the roles of justices and lawyers. By the end of the semester, you will have learned everything you wanted to know--maybe more than you wanted to know--about how cases make it to the Court, how the justices decide them once they're there, and what impact those decisions have in the real world.

As the semester proceeds, keep in mind the fact that (or at least the possibility that) the Court is simultaneously a legal and a 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. A central question that we'll return to again and again is how well this dual character works out in actual practice.

Course Readings

There is one required book, which has been ordered at the SU Bookstore and placed on 2-hour reserve at Bird Library:

• Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (Anchor Books, 2008). ISBN: 978-1-4000-9679-4. List price: $16.00.

In addition to Toobin's book, there will be a number of required readings distributed in class, others available on electronic reserve (accessible through Blackboard), and still others available on-line (linked from the course schedule below). If you have trouble accessing any of the readings, 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.

In addition to the readings listed in the course schedule, all students should read SCOTUSBlog on a daily basis, or as close to that as you can manage. These on-line resources may be useful as well:

• U.S. Supreme Court (official website)

• SCOTUSWiki (a companion to SCOTUSBlog, this site has great info on all upcoming cases at the Court)

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

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

• Office of the Solicitor General (division of the Department of Justice tasked with conducting all Supreme Court litigation on behalf of the federal government)

Course Requirements

Course grades will be based on two papers, a semester-long simulation assignment, a mid-term exam, and class attendance and participation.

Paper assignment #1 (10% of your final grade)

Due in class on Tues., Sept. 14.

Choose one justice who has served on the Court during the 21st century. (I.e., any of the current justices, or Chief Justice Rehnquist, or Justices Stevens, O'Connor, or Souter.) In approximately four pages, typed and double-spaced, describe and critically evaluate his/her understanding of the role of the Supreme Court. Your description should include some direct quotations to the justice's own writings, on and/or off the bench. Your critical evaluation should include some comparative references--i.e., some discussion of how your justice's understanding of the Court's role differs from the understanding of some other justices.

Paper assignment #2 (15%)

Due in class on Thursday, December 9. Note that all students who are serving as justices in the simulation assignment (described below) will have another written assignment due that same day. As such, these students may have an additional week for paper assignment #2, submitting it to my mailbox in Eggers 100 by 4:30 p.m. on Thursday, December 16.

Recall George Packer's analysis of the contemporary U.S. Senate, which we read at the beginning of the semester. In approximately six pages, typed and double-spaced, conduct a similar analysis of the contemporary U.S. Supreme Court. How well is it performing its assigned role in the American political system? And what, exactly, is that role supposed to be? Is it doing any better than the Senate? If so, why? If not, is that the fault of the individual justices? In other words, if we just appointed the right people, would the Court get back on track? Or is there some structural problem with the institution that needs to be addressed? If the latter, how might we address that problem? Are there any conceivable institutional changes that might improve the Court's performance? If you could propose one constitutional amendment regarding the Court, what would it say?

Simulation assignment (50%)

For the simulation assignment, each student will be assigned to play a role as a Supreme Court justice or a lawyer, and our simulated Court will hear and decide several cases as the semester proceeds. I'll provide further details in class, but for now, you should be aware that this assignment will require a substantial written component, and for most roles, some significant in-class performance 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.

Midterm exam (15%)

On Thursday, November 11, we will have a midterm exam in class. I'll provide further details as the date approaches, but the exam will focus on the real-world cases that play the largest role in our simulation assignment. 

Attendance and participation (10%)

Your participation grade will be assigned by me, based on your in-class contributions outside the context of the simulation assignment.  

Course Policies

Attendance policy: More so than in most courses, regular attendance will be essential to your success 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 your written work on the assumption that you have mastered all of this material.

Class participation: Though I will sometimes lecture for all or part of a class session, that will not be our primary in-class activity. Most of our sessions will be devoted to active discussions that require the participation of all students. This does not mean that you have to come to every 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 activities. In addition to SCOTUS Blog, which provides the most comprehensive coverage, I recommend Slate, which features Dahlia Lithwick, the most entertaining Supreme Court correspondent around.

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: Most of your written work will be graded 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: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. This means that it is your responsibility to be familiar with the Policy in general and to learn about the specific expectations of each of your instructors regarding proper citation of sources in written work. The policy also governs the integrity of work submitted in exams and assignments as well as the veracity of signatures on attendance sheets and other verifications of participation in class activities. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty 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 more information and the complete policy, see the Academic Integrity Policy and Procedures. 

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 believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Room 309 of 804 University Avenue (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters to students with documented disabilities. Since accommodations may require early planning and generally are not provided retroactively, please contact ODS as soon as possible. 

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. Once the simulation assignment gets rolling, you will be using this feature to contact other members of the class as well. As such, all students are responsible for regularly checking their SU email accounts throughout the semester.  

Course Schedule

Tues., Aug. 31: Course introduction. No reading beforehand.

Thurs., Sept. 2: I'll be out of town, attending the annual meeting of the American Political Science Association, but class will still meet. You'll be watching a 2003 episode of The West Wing entitled "The Supremes." If you're not familiar with the show, it focuses on the internal workings of the White House, with Martin Sheen as President Bartlett. In this episode, he has a Supreme Court vacancy to fill. As for readings, go ahead and get started on the Toobin book. We'll begin discussing it (along with the film) next week, and it will also be an important resource for your first paper assignment.

• Toobin, prologue and ch. 1

Tues., Sept. 7: Thinking about the Supreme Court (and the Senate)

• Toobin, ch. 2
• George Packer, "The Empty Chamber" (Aug. 9, 2010) (on line)

Thurs., Sept. 9: An inside look, from two clerks and a justice (or is it two justices and a clerk?)

We'll be discussing three inside accounts of the Court today, one by Chief Justice Rehnquist, looking back on his time as Justice Jackson's clerk a half-century earlier; one by Justice Breyer, who had also clerked at the Court, a decade after Rehnquist; and one by Edward Lazarus, who clerked for Justice Blackmun in the 1980s. If you're interested in further reading on the justices' clerks, you might take a look at Closed Chambers, from which the Lazarus chapter below is drawn. I also recommend David Garrow's "The Brains Behind Blackmun" and Artemus Ward and David Weiden's Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. For additional descriptions of the Court from the justices' perspective, note Ruth Bader Ginsburg's "An Overview of Court Review for Constitutionality in the United States," as well as the readings by Antonin Scalia and David Souter assigned for next week.

• William H. Rehnquist, "A Law Clerk Comes to Washington" (handout)
• Edward Lazarus, "A Clerk's Eye View" (handout)
• Stephen Breyer, "The Work of the Supreme Court" (handout)

Tues., Sept. 14: What are the justices supposed to be doing (in constitutional cases)?

Note: Paper assignment #1 is due in class today.

• Antonin Scalia, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws" (1997) (handout)
• David Souter, Harvard Commencement Remarks (May 27, 2010)

Recommended reading: Stephen Breyer, Making Our Democracy Work: A Judge's View.

Thurs., Sept. 16: Let's look at a specific case: Planned Parenthood v. Casey (1992)

• Toobin, ch. 3-4

Tues. and Thurs., Sept. 21 and 23: Simulation Assignment

We'll spend this week introducing the simulation assignment, and we will begin the process of assigning each student a role to play. These roles will include the nine current justices, and possibly also some of the justices who have left the Court in recent years. They will also include a number of lawyers who will be tasked with bringing cases to our simulated Court.

If you are assigned to play a justice, your first task is to learn as much as you can about that justice's understanding of the law and the Court. For many (though not all) of the justices, you can find some useful starting points within our required readings. If you are assigned to play a lawyer, your first task is to choose a case that you are interested in working on. I will distribute a list of available cases in class.

There are no required readings for this week, but it may be helpful at this point to take a look at some real-world documents from the Court, including the Court's official rules of procedure, a petition for a writ of certiorari (also known as a "cert. petition," and don't worry, I'll explain what that means), a merits brief, an amicus curiae ("friend of the court") brief, and an internal memo from one justice to another (for a selection of such memos, check out the on-line archives from the papers of Justices Tom Clark or Harry Blackmun).

Tues., Sept. 28: If you were president, would you look for justices with a big heart, an outstanding legal mind, or something else?

In The West Wing, what kind of justice was President Bartlett looking for? Why? When President Obama said one quality he was looking for was "emphathy," what did he mean?

• Toobin, ch. 5-6
• Dahlia Lithwick, "Personal Truths and Legal Fictions" (Dec. 17, 2002) (on line)

Thurs., Sept. 30: What do conservatives want from the Court?

• Toobin, ch. 7-9

Tues., Oct. 5: Does the Court follow the election returns? Should it?

• Toobin, ch. 10
• Jeffrey Rosen, "Introduction: The Most Democratic Branch" (electronic reserve)

Thurs., Oct. 7: Do the justices sometimes ignore the law?

• Toobin, ch. 11-13

Tues. and Thurs., Oct. 12 and 14: Simulation Assignment

Note: Cert. petitions from all lawyers should be posted on Blackboard prior to Tuesday's class.

This week will be devoted to our simulation assignment, with cert. petitions due at the beginning of the week. We'll spend our class time hearing presentations from the lawyers about why their cases are interesting, significant, and worthy of the justices' time. All justices should make every effort to be in attendance this week to hear these presentations.

If time allows, we may also hear presentations from some of the justices, focused on key biographical facts, political experiences, and jurisprudential principles that will help the rest of us understand each justice's approach to his/her job. During Thursday's class, the justices will deliberate on which of the simulated cases they would like to hear, with cert. grants to be announced as soon thereafter as possible. Once these decisions have been announced, lawyers in cases that were not selected will be reassigned to alternative roles for the remainder of the assignment.

There is no required reading this week, but if you have not done so already, I recommend reviewing the real-world documents linked under September 21/23 above.

Tues., Oct. 19: Should the justices sometimes ignore the law? 

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

Thurs., Oct. 21: Should they cite foreign law?

• Toobin, ch. 14-15

Tues., Oct. 26: Do amicus briefs influence the Court? How about oral arguments?

Note: All briefs on behalf of the petitioner in case #1 should be posted on Blackboard by the end of the day today.

Note that one of the "readings" for today is actually an audio recording of the April 2003 oral arguments in Grutter v. Bollinger (2003). The oral arguments run for one hour, so you'll know exactly how much time to set aside for this "reading." If you follow along with the written transcript while you listen, you'll notice that the transcript for these arguments (as for many others) includes some transcription errors. More importantly, you may notice that the audio recording gives you a better sense than the written transcript of the nuanced interactions between the justices and lawyers. As you listen (and read), try to think about both the role played by oral arguments in the justices' decision-making process in general and the specific arguments that the lawyers and justices were engaged with in this case, which is also the focus of Toobin's chapters 16-17.

Note that the site which houses the audio recording, known as The Oyez Project, has an amazing collection of recordings dating back more than fifty years. Since most of you will soon be participating in oral arguments yourself as part of our simulation assignment, it might be helpful to listen to some additional arguments besides those in Grutter.

• Toobin, ch. 16-17
• Oral arguments, Grutter v. Bollinger, April 1, 2003 (on line)

Thurs., Oct. 28: What is the Court's role during wartime?

Note: All briefs on behalf of the respondent in case #1 and the petitioner in case #2 should be posted on Blackboard by the end of the day today.

• Toobin, ch. 18

Nov. 2, 4, 9, and 11: Simulation Assignment and Midterm Exam

Note: All briefs on behalf of the respondent in case #2 and the petitioner in case #3 should be posted on Blackboard by the end of the day on November 2. All briefs on behalf of the respondent in case #3 should be posted by the end of the day on November 4.

These two weeks will be devoted to our simulation assignment and a midterm exam. On Nov. 2, we'll hear oral arguments in case #1. In preparation, all students should skim the lower court holding, available here:

•  Perry v. Schwarzenegger (N.D. Cal. 2010)

On Nov. 4, we'll hear oral arguments in case #2. In preparation, all students should read the lower court holding, available here:

• United States v. Pineda-Moreno (9th Cir. 2010)

On Nov. 9, we'll hear oral arguments in case #3. In preparation, all students should read at least one of the three recent lower court holdings on the federal health care law, available here:

•  Cuccinelli v. Sebelius (E.D. Va. 2010)

• Thomas More Law Center v. Obama (E.D. Mich. 2010)

• Florida v. Department of Health and Human Services (N.D. Fla. 2010)

On Nov. 11, we will have a midterm exam in class, which will focus on these three cases, along with everything else we've learned about the Supreme Court so far this semester.

As soon as each case has been argued, the justices who heard that case should begin deliberating, voting, and drafting opinions. Each justice must write at least one opinion, whether majority, concurring, or dissenting.

In addition to the readings on the individual cases, everyone should read the article by Lawrence Lessig listed below. Student-lawyers who will be arguing one of our simulated cases should take a look at John Roberts's "Thoughts on Presenting an Effective Oral Argument" and Tara Trask and Ryan Malphurs's "Don't Poke Scalia" as well. The piece by Lessig is an account of his performance as an advocate in Eldred v. Ashcroft (2003). The piece by Roberts, written before he joined the Court, offers some practical tips for lawyers, drawing from his own experience arguing before the Court. The piece by Trask and Malphurs offers some similar advice, drawing on their observation of oral arguments in more than fifty cases. The leading oral advocates at the Court today include Maureen Mahoney, Carter Phillips, and Tom Goldstein, the latter of whom founded SCOTUS Blog. This article by Noam Scheiber describes Phillips's and Goldstein's different styles of work, noting in particular Goldstein's increasingly significant influence on the Court.

• Lawrence Lessig, "How I Lost the Big One" (on line)

Tues., Nov. 16: Where do the justices' written opinions come from?

• Toobin, ch. 19
• Linda Greenhouse, "The Road to Roe" (electronic reserve)

Thurs., Nov. 18: Do the Court's decisions have any impact?

We've been focusing most of our attention this semester on the internal workings of the Court, but I'd now like to shift our focus to the question of whether the Court's decisions have any significant impact on the real world. If the answer to that question seems obvious, I would note that political scientist Gerald Rosenberg has written a highly regarded book arguing that even the Court's landmark decisions generally turn out to be pretty insignificant. Offering a slightly different twist, legal scholar Michael Klarman has written another highly regarded book arguing that the Court's decisions are indeed influential, but usually in a counterproductive fashion. Give their arguments a good, close reading, and come to class prepared to defend or critique them.

For today, we'll focus on the impact of Brown v. Board of Education in particular, and the Court's mid-twentieth century civil rights decisions more generally. Additional readings on these topics include Klarman's "The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking" and Cass Sunstein's “Did Brown Matter?”

• Gerald Rosenberg, "Bound for Glory? Brown and the Civil Rights Revolution" (electronic reserve)

Tues., Nov. 23: Topic and readings TBA.

Thurs., Nov. 25: Thanksgiving Day. No class.

Tues., Nov. 30: Are the Court's decisions counterproductive? 

Continuing our discussion of the Court's impact, we'll consider Klarman's argument that the its decisions are usually counterproductive. Like Rosenberg, Klarman rests his argument partly on Brown v. Board, but he examines the Court's 2003 decision in Lawrence v. Texas too. In addition to those decisions from SCOTUS, note that he examines a state supreme court decision on same-sex marriage as well. SCOTUS may eventually address this issue, but it has not done so yet, and in the meantime, there is a vigorous scholarly debate regarding the impact of state court decisions expanding marriage equality in Massachusetts, California, and a number of other states. If you're interested in my own take on this debate, which is somewhat different than Rosenberg's and Klarman's, you might take a look at my article entitled, "Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights." 

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

Thurs., Dec. 2: Is John Roberts acting like an umpire?

During his confirmation hearings, Roberts famously said that judges should act like umpires? What did he mean by that? Was he telling the truth?

• Toobin, ch. 20-25, epilogue, and afterword
• Jeffrey Rosen, "Roberts's Rules" (on line)
• Jeffrey Toobin, "No More Mr. Nice Guy" (on line)

Tues., Dec. 7: Obama v. Roberts: Who's going to win? And what are they fighting about?

If Roberts isn't an umpire, is he a competitor? If so, who is he competing against? Justice Breyer? President Obama? Someone else?

• Lauren Collins, "Number Nine: Sonia Sotomayor's High-Profile Debut" (on line)
• Adam Liptak, "Court Under Roberts is Most Conservative in Decades" (on line)
• Peter Baker, "Obama v. Roberts: The Struggle to Come" (on line)
• Jeffrey Toobin, "Without a Paddle: Can Stephen Breyer Save the Obama Agenda in the Supreme Court" (on line)

Thurs., Dec. 9: Simulation Assignment

Note: Paper assignment #2 is due in class today. All written opinions from our justices are due today as well. For that reason, students who are serving as justices may have an additional week for paper assignment #2, submitting it to my mailbox in Eggers 100 by 4:30 p.m. on Thursday, December 16. For everyone else, it's due today.

Class today will be devoted to our simulation assignment. The justices will announce the Court's decisions in the three cases, and in doing so, will read (or, preferably, summarize) portions of their opinions from the bench. If time permits, we will then hear statements from the lawyers in each case, reacting to the decisions as if on the courthouse steps.