The Supreme Court in American Politics
PSC 316.001 (Fall 2013)
|Class Instructors||Office Hours and Locations|
|Tom Keck||T, Th 1:30-3:00|
|Pia Sawhney||T, W 10:00-11:00|
M 2:30-3:30, F 1:30-2:30
Class Time and Location: T, Th 11:00 am - 12:20 pm, Lyman 132
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, writing, 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.
There are two required books, which have been ordered at the SU Bookstore and placed on 2-hour reserve at Bird Library:
There is also one recommended book available at the SU Bookstore (and also on reserve at Bird). If your background knowledge of the Supreme Court is minimal, I recommend that you read it during the first few weeks of the semester:
In addition to the Seamon and Stohr books, there will be a number of required readings distributed in class, others available 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)
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 grades will be based on a semester-long simulation assignment, two papers, and class attendance and participation.
Hard copies of all written assignments are due on the dates indicated in the course schedule below. In addition, on those same dates, electronic copies of each assignment must be submitted to turnitin.com, available through Blackboard under the Assignments tab.
Simulation assignment (50% of your final grade)
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. For a working list of cases that will be involved in the assignment, click here. I'll provide further details in class, but for now, you should be aware that this assignment will require a substantial written component and, in most cases, a significant in-class performance component 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.
Paper assignment #1 (15%)
Due in 100 Eggers by Mon., Sept. 9. Choose one of the current justices. 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. As a starting point, review the materials collected in Seamon, ch. 2. Also, check out the list of speeches by a number of the justices available here, this handy tool for finding opinions written by particular justices, and this site which compiles materials on recent nomination hearings for the justices.
Note also that you should choose a justice whom you would be interested in portraying in the simulation assignment, as I will assign the justice roles on the basis of these papers. In other words, whoever writes the best paper on Justice Scalia will be assigned to play Justice Scalia, and so on. I will also be assigning a student to play U.S. Solicitor General Donald Verrilli, so if you would prefer to write a paper profiling him rather than one of the justices, you are welcome to do so. This paper should explore General Verrilli's conception of the role of the Solicitor General's office and its relationship to the high Court.
Thinking ahead to the simulation assignment, if your preference would be to play a lawyer rather than a justice, please indicate that preference (along with a brief explanation) at the end of your paper.
Paper assignment #2 (25%)
Due in class on Thursday, December 5. Note that all students who are serving as justices in the simulation assignment will have another written assignment due that same day. As such, these students may have an additional week for paper assignment #2, submitting it in Eggers 100 by 4:30 p.m. on Thursday, December 12.
Recall The Federalist #78. What role is the U.S. Supreme Court designed to play in the American constitutional system? Be as specific as possible in describing this role. Include some direct quotations from Hamilton's essay. How well is the contemporary Court performing this role? Again, be as specific as possible. Provide concrete examples of ways in which the justices are fulfilling their duties and/or falling short, supported by specific references to the course readings. Finally, propose at least one amendment to the U.S. Constitution that would improve the Court's performance. Again, be as specific as possible. Provide the full text of your proposed amendment and explain why and how it would lead to a better Supreme Court. This paper should be approximately five pages, typed and double-spaced.
Attendance and participation (10%)
Your participation grade will be assigned by me, based on your non-written contributions to the class, outside the context of the simulation assignment. The class is quite large, so there will be fewer opportunities for conventional class discussion than I would like. Nonetheless, by the end of the semester, it should be clear to me that you have been eating, breathing, and sleeping the U.S. Supreme Court for the past four months. More literally, the closer you come to reading, thinking, and talking about the Court 24-7, the more succesful you will be.
In particular, even more so than in most courses, regular attendance will be crucial to your success. 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.
In addition to being physically present, you should also be fully prepared beforehand and actively engaged while you are here. Active engagement involves attentive listening, careful note-taking, responding to my questions in class, raising questions of your own whenever there's something you don't understand, and seeking help from me or the teaching assistants outside of class whenever necessary. I recognize that this sort of class participation comes with some risks. After all, you might say something that reveals your own lack of knowledge. Rest assured that 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 that you are working toward a mastery of the material.
Your participation grade will be assigned as follows: During the final week of the semester, you should submit a one-page self-assessment in which you assign yourself a letter grade (A, A-, B+, etc.) for participation and then write a paragraph or two explaining and justifying that grade. These paragraphs should address the following questions:
The teaching assistants and I will read your self-assessment, compare it with our own perceptions, and then assign you a participation grade.
Laptops and other electronic devices: During class, your jobs are to listen actively, take careful notes, reflect on the concepts we are discussing, and participate in those discussions when you have something to say. None of these jobs requires a laptop, a tablet, or a phone, and the use of such devices during class can be quite distracting to students sitting nearby. As such, all electronic devices must be turned off and put away promptly at 11:00 am and must stay put away until 12:20 pm. If you want to know why I've adopted this policy, read this blog posting by Brian Pinaire.
Late paper policy: Because much 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, deadlines will be extended only under unusual circumstances, and only with my explicit permission (so don't bother pleading with the TAs).
Grading policy: Most of the written assignments for this course will be graded by the teaching assistants. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or one of the TAs. If you are dissatisfied with your grade on any assignment graded by a TA, you may appeal that grade to me. To do so, you should submit a clean copy of the paper to me, which I will re-grade from scratch. This 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. Further details are available here.
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, and it prohibits students from submitting the same written work in more than one class without receiving written authorization in advance from both instructors. The presumptive penalty for a first offense by an undergraduate student is course failure, accompanied by a transcript notation indicating that the failure resulted from a violation of Academic Integrity Policy. For more information and the complete policy, see http://academicintegrity.syr.edu.
Student academic work: Because of the nature of the simulation assignment, much of the written work that you produce for this course will be viewed by other students in the course. (Your grades on these assignments, of course, will be revealed only to you.) In addition, any work that you produce as part of 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 remove your name so that the work is rendered anonymous.
If you believe that you need accommodations for a disability, please contact the
Office of Disability Services
(ODS), located at 804 University Avenue, room 309 (443-4498). ODS is responsible for coordinating disability-related
accommodations and will issue
Accommodation Authorization Letters when appropriate. Since accommodations may
require early planning and generally are not provided retroactively, please
contact ODS as soon as possible.
Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located at 804 University Avenue, room 309 (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. 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's Religious Observances Policy, I will excuse any absences that result from religious observances, provided that you submit the required on-line notification form via MySlice during the first two weeks of the semester.
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.
Tues., Aug. 27: Course introduction. No reading beforehand, but if you miss class today, be sure to read Alexander Hamilton's Federalist #78. We began reviewing it together in class, and our discussion will continue next week.
Thurs., Aug. 29: I'll be out of town, attending the annual meeting of the American Political Science Association, but class will still meet. You will be watching an episode of a documentary series entitled The Supreme Court. (If you took PSC 324 with me last year, note that we are showing a different episode this time.) Be sure to get started on the Stohr book, and if you have minimal prior background in studying the Supreme Court, I recommend reading Linda Greenhouse's The U.S. Supreme Court: A Very Short Introduction as well.
I. The Court, the Justices, and the Cases
Picking up with our discussion last week, we'll talk further about the role that the Court is designed to play in our constitutional democracy, and we'll begin talking about how the nine current justices have tried to fulfill that role. Everyone should be hard at work on paper assignment #1.
Tues., Sept. 3: Thinking about the Supreme Court
Thurs., Sept. 5: Where do the justices come from?
Our focus today will be the nine current justices. Who are they and how did they wind up on the Court? In addition to the assigned pages, the rest of Seamon's chapter two is worth reading and may be helpful for paper assignment #1.
Mon., Sept. 9: Paper assignment #1 is due in 100 Eggers by 4:30 pm today.
Tues., Sept. 10: Where do the cases come from?
Our focus this week turns from the justices to the cases. What sort of legal disputes reach the Supreme Court, and how do they get there? We'll start with the Michigan affirmative action cases, and then turn to broader considerations.
Thurs., Sept. 12: The cert. process
In addition to the materials in the Seamon text, read the first-hand account 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 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.
Tues. and Thurs., Sept. 17 and 19: Simulation Assignment
We'll spend this week introducing the simulation assignment, beginning by assigning each student a role to play. I will assign 10 students to serve as the nine current justices, along with the Solicitor General of the United States. Everyone else will (at least initially) be assigned as a lawyer tasked with bringing a cert. petition 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. In addition, if you'd like, you may "hire" one student in the class to serve as your law clerk. As with real-world law clerks, he/she will assist you with reviewing cert petitions, drafting opinions, and the like. Assuming everything goes smoothly, that student will be withdrawn from our list of student-lawyers and will serve instead as your clerk for the remainder of the semester.
If you are assigned to be the SG, your first task is to learn as much as you can about the function of the Office of the Solicitor General, the background of the current incumbent (Donald Verrilli), and the legal goals of the Obama administration. You should also begin recruiting one or more additional student-lawyers to join your staff as a Deputy Solicitor General. Your next task is to review this list of potential cases and decide which ones General Verrilli would be most likely to urge the Court to hear. Once you've done so, you should begin drafting cert. petitions (or amicus briefs in support of cert.) attempting to persuade our simulated Court to hear those cases. Finally, the SG (and his/her deputies, once hired) should meet outside of class with Professor Keck at least once before cert. petitions are due.
If you are assigned to play a lawyer other than the SG, your first task is to choose a case that you are interested in working on. A list of potential cases is available here, and all lawyers must make at least a tentative selection by Thursday. (Alternatively, if you would rather be a law clerk than a lawyer, you should try to find a justice willing to "hire" you.) Once you have settled on a case, you should draft a cert. petition attempting to persuade our simulated Court to hear that case. (For some helpful tips, take a look at Seamon, pp. 205-218.) Each student-lawyer will draft his/her own petition, but for the in-class presentations scheduled three weeks from now, you will have to collaborate with any other student-lawyers who are working on the same case as you. Each student-lawyer should meet outside of class with one of the TA's at least once before cert. petitions are due.
II. Written Advocacy
Our focus turns now to the written briefs submitted by lawyers to the Supreme Court. This is the principal mode by which advocates bring legal arguments (and other considerations?) to the justices' attention. What makes for an effective brief? You should be sure to have the required readings with you in class this week, as we will refer to many of the documents collected in the Seamon book.
Tues., Sept. 24: A crash course on legal research and writing
We'll be visited today by SU librarian Michael Pasqualoni, who will give us a crash course on legal research resources available in Bird Library, through Bird's on-line portal, and on the web more generally. I'll follow up with some additional thoughts on writing an effective legal brief or a compelling appellate opinion.
Thurs., Sept. 26: The Office of the Solicitor General
Tues., Oct. 1: Merits briefs
Thurs., Oct. 3: Amicus briefs
Tues. and Thurs., Oct. 8 and 10: 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.
Immediately following Thursday's class (or perhaps during the last 20 minutes of class, if time allows), the justices should begin deliberating on which of the simulated cases they would like to hear, with cert. grants in three cases to be announced as soon thereafter as possible.
Once these decisions have been announced, all lawyers in cases that were not selected must meet ASAP with Professor Keck or one of the TAs to negotiate alternative roles for the remainder of the assignment.
For student-lawyers, there are no required readings this week. The student-justices must collectively read all cert. petitions that are posted on Blackboard, but they are welcome to negotiate with one another on ways to share this burden.
III. Oral advocacy
Tues., Oct. 15: Oral arguments in Grutter v. Bollinger (2003)
In addition to the required readings listed below, everyone should listen to the audio recording of oral arguments in Grutter v. Bollinger (2003). The argument in this case (as in most cases) runs for exactly one hour, so you'll know how much time to set aside for listening. 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 the role played by oral arguments in the justices' decision-making process in general and about the specific arguments that the lawyers and justices were engaged with in this case. Note that the site which houses the audio recording for Grutter, known as The Oyez Project, has an amazing collection of recordings dating back more than fifty years. For a first-hand account of oral arguments from a lawyer's perspective, I recommend Lawrence Lessig's "How I Lost the Big One".
Thurs., Oct. 17: Oral arguments in Lawrence v. Texas (2003) and NFIB v. Sebelius (2012)
As before, try to find time to do some listening as well as reading for today's class--in this case, listening to as much of the oral argument in Lawrence v. Texas (2003) and NFIB v. Sebelius (2012) as you can. In the former case, you can follow along with the excerpted transcript in the Seamon book. In the latter case, note that the arguments took up six full hours over three days; I recommend focusing on the portion devoted to the constitutionality of the individual mandate provision of the Affordable Care Act.
Tues., Oct. 22: Our class session today will be devoted to another episode of the documentary series on the Supreme Court that we watched at the beginning of the semester. No required reading, but student-lawyers should be hard at work on their merits briefs, and student-justices should be learning as much as they can about our three remaining cases.
Thurs., Oct. 24: The Conference
Tue., Oct. 29; Thurs., Oct. 31; and Tue., Nov 5: Simulation assignment
On these three class days, we will hold oral arguments in the three cases in which our simulated Court granted cert., as follows:
Oct. 29: Floyd v. NYC
Oct. 31: Galloway v. Greece
Nov. 5: Canning v. NLRB
For each case, all briefs on behalf of petitioners (including amici supporting petitioner) should be posted on Blackboard four days before the scheduled arguments. All briefs on behalf of respondents (including amici supporting respondents) should be posted two days before the scheduled arguments. Any optional reply briefs from petitioners should be posted one day before the scheduled arguments. The specific dates are indicated on our simulation assignment page.
As soon as each case has been argued, the student-justices should begin deliberating, voting, assigning and drafting opinions. The majority opinion in each case should be at least 10 pages or so. Justices who are not writing a majority opinion should either write a concurring or dissenting opinion of similar length or should write two concurring or dissenting opinions (in two different cases) that are somewhat shorter. In sum, each justice should write a total of at least 10 pages or so.
IV. Deciding Cases
Thur., Nov. 7: Assigning and drafting opinions
We'll begin class today with a quiz, focused on the three cases on which we've heard simulated oral arguments over the past two weeks. We will then turn our attention back to the Court's internal process of decision-making and opinion-drafting, focusing in particular on Linda Greenhouse's account of Justice Blackmun's opinion-drafting process in Roe v. Wade (1973).
Tues., Nov. 12: Law and politics on the Court
V. How Powerful is the Supreme Court?
Thurs., Nov. 14: Is the Court a hollow hope?
We now turn our attention from the internal workings of the Court 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, The Hollow Hope, pp. 42-93 (on Blackboard)
Tues., Nov. 19: What impact has the Court had on affirmative action policy?
Thurs., Nov. 21: Are the courts a viable avenue for social change?
Tue. and Thur., Nov. 26 and 28: Thanksgiving break. No class.
Tues., Dec. 3; and Thur., Dec. 5: Simulation Assignment
Note: Paper assignment #2 is due in class on Thursday of this week. All written opinions from our justices are due that day as well. For that reason, students who are serving as justices may have an additional week for paper assignment #2, submitting it in Eggers 100 by 4:30 p.m. on Thursday of next week.
On Tuesday, we'll discuss some contemporary developments at the Court, with readings TBA.
On Thursday, class will be devoted to our simulation assignment. The student-justices will announce the Court's decisions in the pending 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.