Political Science 467

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Political Science 467

Professor Bradley Canon

Fall, 2000

1615 POT

Hours: 10-11 a.m. M & W

3:30 - 4:15 p.m. Tue.

Phone: 257‑4895

E-mail: POL140@pop.uky.edu

THE UNITED STATES SUPREME COURT

NATURE OF COURSE: The focus is on the U. S. Supreme Court as an institution and on its role in making national policies. My goal in this course is to have you better understand: (1) how cases and the causes they represent come to the Court, (2) the politics of selecting justices, (3) how the Court makes decisions and what factors explain them, (4) how the Court interacts with the other branches of government and with the public, and (5) how Court decisions are implemented and what impact they have on American political, economic and social life.

TEXTS: There are two required textbooks for the course:

Lawrence Baum, THE SUPREME COURT, 6th Ed. (1998)

David M. O'Brien, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS, 5th Ed. (2000)

Baum is more analytical and factual, the play‑by‑play announcer for the course. O'Brien is more historically and anecdotally oriented, the course's color commentator. O’Brien is not organized the way I organize the class and I apologize for cutting it up so much.

There are two recommended books.

Lee Epstein and Jack Knight, THE CHOICES JUSTICES MAKE (1998)

Barbara A. Perry, THE “SUPREMES” (1999)

Epstein and Knight discuss strategies that justices use to obtain their goals. Perry discusses the personalities and attitudes of the current justices. We will focus on both of these topics at times in the course, but I will not hold you responsible for material in these books that is not discussed in class.

ADDITIONAL READING: A list of some other books about the Supreme Court is at the end of the syllabus. Ones asterisked are on three day reserve at Young library.

TESTS: There will be two in‑class exams. One is scheduled for Tuesday, October 10^th. The other will be in the regularly scheduled final exam period, Tuesday, December 12th at 8 a.m. Both exams will have multiple choice and short answer questions. The second exam will not be cumulative.

A take home essay exam will be handed out on Thursday, October 19^th and must be returned on Thursday, November 2nd.

OTHER WORK There will be two simulations of Supreme Court experiences. One will involve granting or denying certiorari petitions currently before the Court (done in class on Thursday, September 28th) with research done the previous 10 days. Another will involve students briefing, arguing or deciding cases that are on the Court's docket this fall (tentatively set for Thursday, November 16^th). Each will have a written component. I will distribute handouts about the simulations on dates indicated on the course outline.

CALCULATION OF COURSE GRADE: Essay exam = 25%, First in‑class exam = 25%; Second in‑class exam = 25%; Certiorari exercise = 10%; Docket case exercise = 10%; Participation = 5%.

EXTRA POINTS: Students can earn up to three extra points (i.e., if you get a 77% average for the course on your work and you submit three questions, you would have an 80% average) for the course by submitting questions to me in writing or by e-mail. (Only one point will be given after Thanksgiving.) They should be questions you want me to answer in class or that your fellow students can take up in class discussion. The questions should relate to the immediate past topic, the one we are discussing in class, or ones that we will discuss in the next couple of periods. You must be present in class when I answer the question in order to get credit.

ATTENDANCE: Ordinarily I do not take roll. However, let me make it clear here that the objective exams will be drawn from the class to a much greater extent than from the texts. Attendance is mandatory for: (1) in-class exams, and (2) when students are taking part in the certiorari and oral argument/decision exercises. Non‑attendance without an excuse will be penalized.

RELEVANT WEB SITES: Supreme Court cases from 1990 through last week can be accessed at http://www.law.cornell/supct.edu . The 2000 Term calendar and orders will also be on it. The text of Supreme Court cases from 1937 to 1975 is available at http://fedworld.gov/supcourt/index.htm . Complete oral arguments from many cases can be heard at http://court.it-services.nwu.edu/oyez/ A virtual tour of the Court building can be done at the above site (add tour/ after oyez/). The Court’s own web site is: http://www.supremecourtus.gov Dahlia Lithwick, columnist for the web magazine SLATE, writes up a half humorous description of oral arguments before the Court at: http://Slate.com/dispatches Other material on the Court can be found through search engines such as Yahoo.

ORAL ARGUMENTS ON TAPE: I have edited versions of about 25 oral arguments before the Court in important cases. I will play a few of them in class. You are welcome to borrow the others.

MISCELLANEOUS:This course complements Civil Liberties (PS 461), Constitutional Law (PS 465), American Judicial Process (PS 463), Constitutional Interpretation (PS 566) and HIS 473 (Constitutional History). That is, it serves as a good background for them and vice‑versa, but you need not have taken any of them. American Government (PS101) is the only prior course requirement. ... I'm paid for lecturing and I'll do a fair amount of it. But I encourage you to speak up in class. At times, I will call on you for your opinions or reactions. ... The UK Library has the papers of two Kentuckians who were Supreme Court justices, Stanley F. Reed (1938-57) and Fred Vinson (Chief Justice, 1946-53). If you are interested in looking at them and gaining a fascinating glimpse of life in the Marble Temple, let me know. ... I will be glad to go to coffee, etc., or lunch (Dutch treat), with one or more of you to talk about the Supreme Court or whatever. Let me know ahead of time.

COURSE OUTLINE

DATE TOPIC AND READINGS

Thur, Aug. 24 First day introduction

1. Introduction to the Court (Read O’B: chap. 1)

Tue, Aug. 29 The Court’s functions and role (B: 4-8; O’B:104-32, 165-192)

Thur, Aug 31 How the Court works (FILM: “This Honorable

Court”) (O’B: 145-55)

2. Developing the Court's Agenda (Read: O'B: chap. 4 in general)

Tue, Sep. 5 The certiorari process; the rise of the Court’s caseload (B: 105-27; O’B: 155-64;188-200)

Thur, Sep. 7 Certiorari strategies by litigants and justices; the U.S. as a party(B: 82-105; E & K: 25-27, 118-125

Tue, Sep. 12 CERTIORARI EXERCISE HANDOUT; the role of the law clerks (O’B: 132-45)

Thur, Sep. 14 The Court’s agenda in the context of national problems and policies (B: 190-216)

3. The Justices

Tue, Sep. 19 The Politics of presidential selection (B: 30-49, 60-77; O'B: 32-about 72, 100-03)

Thur, Sep. 21 Pres. selection (cont’d); Leaving the Court

Tue, Sep. 26 Senate confirmation/rejection (B: 49-60; O’B: about 72-86) CLERKS’ CERT MEMOS DUE TODAY

Thur, Sep. 28 CERTIORARI EXERCISE

Tue, Oct. 3 The Current Justices (P: all)

Thur, Oct 5 Current Justices (cont’d); DISCUSSION OF CERTIORARI EXERCISE

4. Deciding Cases

Tue, Oct. 10 MID TERM EXAMINATION

Thur, Oct. 12 Overview of the decisional process(B: 132-34)

Tue, Oct. 17 Input: briefs (including amicus curiae) and oral argument (B: 134-41; O’B: 253-61)

Thur, Oct. 19 The conference and opinion assignment (O'B: 239- 253, 261-283); TAKE HOME ESSAY HANDED OUT

5. Explaining Justices' Decisions

Tue, Oct. 24 The role of law and precedent in deciding cases (B: 141-49; E & K: 163-77)

Thur, Oct. 26 The role of justices’ attitudes in deciding cases

(B: 149-63: E & K: chap. 2)

Tue, Oct. 31 Justices as strategic actors (B: 163-74; O’B: 283-295; E & K: chaps. 1 and 3)

Thur, Nov. 2 Developing opinions; the role of dissent (O’B: 295-318). BRIEF, ORAL ARGUMENT AND OPINION EXERCISE HANDED OUT TODAY. TAKE HOME ESSAY EXAM DUE IN TODAY.

Tue, Nov. 7 ELECTION DAY HOLIDAY

Thur, Nov. 9 INSTRUCTOR OUT OF TOWN - NO CLASS

6. The Court and the National Policy Making Process

Tue, Nov. 14 Conflict and “cooperation” between the Court and the other branches on national policies(B: 180-82, 191-223; O’B: 98-103, 362-77; E & K: 138-57) BRIEFS DUE TODAY.

Thur, Nov. 16 ORAL ARGUMENT TODAY

Tue, Nov. 21 Conflict and cooperation (cont’d)

Thur, Nov. 23 THANKSGIVING

Tue, Nov. 28 The Court, the media and public opinion (B: 174-80; O’B: 319-28, 342-49)

7. Implementation and Impact of Supreme Court Decisions

Thur, Nov. 30 Implementation by lower courts; compliance by government agencies and by private actors (O'B: 328-42, 349-62) OPINIONS DUE TODAY

Tue, Dec. 5 Implementation and compliance (cont’d) DISCUSSION OF BRIEFS, ORAL ARGUMENT AND OPINION EXERCISE.

Thur, Dec. 7 Do Court decisions change society?(B: 261-73)

Tue, Dec. 12 SECOND IN CLASS EXAM (at 8 a.m.)

BOOKS ON THE SUPREME COURT

*Abraham, Henry J. JUSTICES, PRESIDENTS AND SENATORS, Rev. Ed. (2000). A broad look at how and why presidents have appointed (and Senators confirmed) justices to the Court over the years.

Baum, Lawrence A. THE PUZZLE OF JUDICIAL BEHAVIOR (1997). Explores theories and research about why justices (and other judges) decide cases the way they do.

Biskupic, Joan and Elder Witt, THE SUPREME COURT AT WORK, 3rd Ed. (1997) A massive guide to what the Court does and how it does it (reference at both libraries).

Bloch, Susan and Thomas Krattenmaker, SUPREME COURT POLITICS: THE INSTITUTION AND ITS PROCEDURES (1994) Readings and commentary on the selection of justice, the certiorari process, the lawyers who argue before the Court and proposals for reform.

*Canon, Bradley C. and Charles A. Johnson, JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT, 2nd Ed. (1999). A review of the research into how and why Court decisions are or are not implemented and what effect they have on society.

Caplan, Lincoln. THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987). An insider's look at the SG's certiorari and argument strategies over the past 30 years.

Cooper, Phillip J. BATTLES ON THE BENCH (1996). Recounts battles and warfare between certain justices on and off the Court.

Gillman, Howard and Cornell Clayton (Eds.) THE SUPREME COURT AND AMERICAN POLITICS (1999) Essays by political scientists on the Court as an institution and on its political influence.

*Lazarus, Edward. CLOSED CHAMBERS (1998) A former clerk's account of ideological infighting on the Court in the late 1980s in the abortion, race relations and death penalty areas.

*Perry, Barbara. THE PRIESTLY TRIBE (1999) How the Court presents itself to the public and public images of the Court.

*Perry, H. W. Jr. DECIDING TO DECIDE: AGENDA SETTING IN THE U.S. SUPREME COURT (1991). A study of the Court's certiorari process based on numerous interviews with justices and law clerks.