Fall Term, 2013: LAW AND POLITICS, 790-106
BJ Levine
908 722 1577; [email protected]
ALTERNATE WEDNESDAYS (12:00-1:20pm) AND EVERY FRIDAY (1:40-3:00pm) in Rm.101, Lucy
Stone Hall Auditorium on the Livingston Campus. Section meetings (“recitations”) will be held on
alternate weeks --Wednesday or Thursday, depending on your assigned section. (For the dates and day of
the week for your section meetings please consult this syllabus, your registration information, and the
university website for class schedules. This will be discussed more thoroughly on the first day of class.)
OFFICE HOURS: Tuesdays 3:45 – 4:15pm, 411 Hickman Hall, or, by appointment. (The times and/or
locations for office hours are subject to change as events dictate throughout the term. Adequate notice of
these changes will be provided to students.)
SPECIAL NOTES: 1) The following business may be conducted at office hours and or
meetings by appointment; these matters may not be conducted via email, or just before or at
the podium just after class: Review of paper or quiz grades; General discussion and or
review and or explanation of course material; Questions regarding assignments. It is my
strong belief that personal, one-on-one, meetings are far more conducive to successful
information sharing and problem resolution than is the impersonal email format. In short,
email should be used almost exclusively to schedule office meetings or telephone
appointments.
2) Students must keep ALL turned-back graded assignments for the entire term.
3) Students should keep on their computer hard drives original copies of assignments that
they have turned in
4) Students are expected to attend all class sessions and all recitation meetings. Excessive
absences may lead to a grade reduction, even a failing grade. If you expect to miss one or two
classes, please use the University absence reporting website //https://sims.rutgers.edu/ssra//
to indicate the date and reason for your absence. An email is automatically sent to me.
PLEASE DO NOT NOTIFY ME DIRECTLY OF AN ABSENCE.
5) Please note the grading policies set forth below under the heading “Grading System and
Policies.”
6) In-class use of computers will be restricted to designated areas within the lecture hall.
OVERVIEW AND OBJECTIVES: The language of the U.S. Constitution is unequivocal: “All
legislative Powers herein granted shall be vested in a Congress of the United States.” It would seem clear,
then, that Congress, and only Congress, has authority to make law. Yet, in practice, policy making in the
United States has been anything but a “one-branch show.” The executive, through both its formal powers
(granted in the constitution) and less formal political advantages (which have evolved as a matter of
practice and Court-made law) has become a major, if not the major, force in federal policy development.
While the policy tugging-and-pulling that goes on between the legislature and the executive has
been a subject for much political science debate—which branch should take the lead in which policy
domains domains?—it seems clear that the Constitution’s authors intended some degree of policy influence
for each. It is considerably more difficult to make the same case for the judiciary. Nonetheless, there is a
strong body of evidence that indicates our courts have been consistently and deeply involved in national
policy development and that at least some opinions have been influenced by the existing political
environment(s)..
During the next several months we will examine the Court in the context of three core
issues/questions: 1) Do courts make policy? 2) Are courts affected by national politics? 3) If the answer(s)
to the preceding questions are “yes,” are we comfortable with these answers?
To assist us in examining these and related questions we will consider the roles of key participants
in the judicial forum—litigants, interest groups, government(s), and judges/justices. We will look at and
evaluate the factors that influence agenda setting, and decision-making in the U.S. Supreme Court. Special
attention will be given to the relationships—some formal, some informal; some obvious, some subtle; some
broadly conceded, some hotly contested—that exist between and among elected officials and jurists..
It is not the purpose of this course to supply answers; certainly, not many of them. Rather, our goal
will be to raise and discuss key questions that bear upon and bring added dimension to the core issues noted
above. Highly scholarshave argued with great passion about the subject matter of this course. Among the
debated issues have been the “Strict Construction” versus “Living Constitution/Activist Court” conflict; the
matter of who gets access to the courts and what difference that makes; and what factors drive the judicial
agenda.
We will consider as much material addressing these issues as a single term will permit us to do.
Hopefully, we will discuss, even argue—always civilly and in good spirit—about the positions and the
reasoning scholars and jurists have employed to establish their conclusions. By December each student
should know how to read and to understand Supreme Court decisions; should have developed some
threshold opinions about the extent to which policy goals and the political environment affect, and or are
affected by, court decisions; and have an appreciation for the range of thinking about what the proper role
of the Court should be. Your opinions will be yours. Our common objective will be to assure that these
opinions are the product of thorough investigation and well-reasoned argument. For this course, please
check dogmatic thinking and excess passion at the door.
ASSIGNED TEXTS: (at New Jersey Books) These texts may be (probably will be) supplemented by
additional cases and or articles as the course progresses. These additional materials will usually be supplied
via scan and paste or via Internet link.
.
Lawrence, Susan E., ed. LAW AND POLITICS IN THE SUPREME COURT:
CASES AND READINGS, REVISED SECOND EDITION, Kendall/Hunt Publishing, 1993
Baum, Lawrence. THE SUPREME COURT, Current edition. (HINT: Used copies of very recent editions
of this book are available from Amazon and other sources. Frankly, a two or three-year old edition will
serve just fine.
Scalia, Antonin. A MATTER OF INTERPRETATION. Used copies of this book are likely available.
Handout or Scanned materials will be added from time to time.
COURSE REQUIREMENTS:
1) Students are expected to attend ALL classes INCLUDING section meetings. (See note above.)
2) Students are expected to complete all required reading and written assignments by the assigned
dates—points will be deducted for late assignments (This will be discussed in class).
3) Students are expected to take and complete ALL required examinations on the dates that they are
given.
4) Students are expected to do 3 of the 4 graded briefs for this course.
5) While vigorous class discussion and debate is strongly encouraged—in fact it is essential for a
successful learning experience—students are expected to be respectful of each other and to
moderate the length of their observations/opinions and questions. NO FILIBUSTERS!
GRADED ASSIGNMENTS: Exams = 60%; Briefs = 40%
1) Examinations (60%): 1 Quiz = 10%; Mid-term: 25 %; Final: 25%
2) 3 Written Assignments (40%): (Special Note: 3 graded briefs will be assigned, students must
do 3 of these.) Roe Brief = 20%; the other two graded briefs will = 10% each. (Remember, there
is one other brief, the first, that will be graded Pass/Fail. It MUST be done! Students who do not
complete this assignment will not be permitted to pass the course. Students who turn in this
assignment more than one week late will lose 5 points on the first graded brief.
GRADING SYSTEM AND POLICIES
1) Grades will be given numerically according to the following scale: A = 90; B+ = 86 – 89;
B = 80 – 85; C+ = 76 – 79; C = 70 – 75; D = 60 – 69; F = 50- 59
2) Briefs will be graded down for lateness according to the following policies:
2 points off if not turned in at the beginning of the section meeting at which it the brief is due, but
is turned in before the end of that class session;
10 points off if turned in within two calendar days of the due date,
Automatic fail after that---but brief must still be done. .
EXAMINATION DATES:
Quiz: October 4 (30 minutes)
Midterm: Wednesday, November 13 (full period.)
FINAL: TBA.
STUDENTS MUST KEEP “HARD COPY” OF ALL WRITTEN ASSGNMENTS FOR THIS
COURSE. ADDITIONALLY, STUDENTS MUST KEEP ALL GRADED ASSIGNMENTS THAT
HAVE BEEN RETURNED TO YOU. THIS WORK MUST BE SAVED UNTIL SRPRING TERM
2011.
ASSIGNMENTS:
Week 1: September 4 & 6
1. Introduction to the Role of the Constitution in the U.S. representative democracy: Read:
U.S. Constitution, Articles I, II, III (see Lawrence pp 2-10); Lawrence: American Court
System, pp 293-295; Baum, in Chapter 1 “The Court in the Judicial System.”
2. Political Power and the Place of Law: Democracy, Constitutionalism, and Liberty and
Constituting the Polity: How the Framers Thought About Limiting Political Power.
Read: Lawrence, Chapter 5 up through page 254 (Skim-read the Declaration of
Independence.)
Week 2: September 11/12 & 13.
3. Section Meeting #1: How to write a brief (for this course) Read: Lawrence, Chapter 2,
and Minersville v. Gobitis, pp 35-42
4. Applying the Constitution: Different Strokes for Different Justices. (We will watch an
important DVD during this class session. Attendance is required.). Read: Lawrence, pp
81-87; Scalia, pp3-48, and Breyer,
Week 3: September 18 & 20
5. Applying the Constitution, (continued): Read in Scalia, Dworkin, pp 115-129, and
Review Scalia and Breyer readings.
6. Establishing and applying the power of Judicial Review.. Read: Lawrence, Marbury v.
Madison and related material, pp 255 – 280
Week 4: September 25/26 & 27
7. Section Meeting #2: Brief Due at Beginning of Class: West Va…. v. Barnette; Begin
discussion of Judicial Review of state legislation.: Read: Baum, Chapter 1 (including
reread of “The Court in the Judicial System:); Lawrence, 35- 71 (the Gobitis [reread],
Barnette, and Johnson cases.)
8. A Brief Detour: A first look at the Court and the “Commerce Clause/Federalism”-- a
subject we will return to during Week #10. [Cases to be assigned].
Week 5: October 2 & 4
9. Judicial Review of State Legislation: Read: McCulloch v. Maryland. In Lawrence,
Chapter 5
10. IN-CLASS QUIZ (30 Minutes) and The Supreme Court as National and Local
Policymaker. Read: Baum, Chapter 5.
Week 6: October 9 /10 & 11
11. Section Meeting #3: Brief Due at Beginning of Class: McCulloch v. Maryland;
Judicial Review of State Legislation (continued), and review of the concepts of
supremacy and implied powers (the Necessary and Proper clause) of the federal
government.
12. The Supreme Court in the Twentieth Century: The Shift from Protecting Economic
Rights to Protecting Civil Liberties and Civil Rights: Read: Lawrence, Chapter 9, up
through page 475. (Be certain to read footnote 4 in Carolene Products, p 462.)
Week 7: October 16 & 18
13. Litigating Rights: Litigant Demands and Court Responses, Do Limitations on Access
Bias the Court’s Agenda? Read: Baum pp. 69-85 in Chapter 3; Lawrence Chapter 7, up
through p. 327
14. Who Succeeds in the Case Selection Process? Reread Baum pp 69 – 85.
Week 8: October 23/24 & 25
15. Section Meeting #4: Brief due at the beginning of section meeting: Missouri ex rel.
Gaines v. Canada. Read: Judicial Review of State Government Legislation: Equal
Protection, the beginning of the end for “Separate but Equal,” and the role of advocacy
interest groups in promoting groundbreaking litigation. Read: Lawrence, pp 328-348;
discuss the Gaines.
16. Equal Protection, the cases, and the concepts of “Incorporation” and “Substantive Due
Process.” READ: Lawrence, 102-201, The Bakke case and Grutter v. Bollinger (To Be
Supplied via link or scan.)
Week 9: October 30 & November 1
17. Bringing Equal Protection Claims to Court and the role of interest groups; and the case
selection process. Read: Baum, finish Chapter 3; Lawrence, finish Chapter 7
18. The Court’s Impact on Public Policy. Read: Baum, Chapter 6
Week 10: November 6/7 & 8
19. Section Meeting #5. Review of Equal Protection (focus on classifications) and
Substantive due Process. No new reading.
20. Who serves on the Court makes a difference: The ”Commerce Clause” link to civil
liberties legislation, and “drawing a line in the judicial sand.” Read excerpt from “The
Process of Constitutional Lawmaking” (to be supplied), Excerpts from Heart of Atlanta
Motel Inc v. U.S., and U.S. v. Lopez. (to be supplied.
Week 11: November 13 & 15
21. MIDTERM #1 – FULL PERIOD
22. Equal protection” “Privacy,” a protected right: Read, Lawrence, Griswold case in Ch.9.
Read, Lawrence, the Griswold case.
Week 12: November 20/21 & 22
23. Section meeting #6. Brief due at the beginning of section meeting: Roe v. Wade: Does
the Court Matter? Compliance and Policy Impact. And, the Concept of Privacy. Reread
Baum, Chapter 6; and Lawrence, Chapter 11 through p. 548.
24. Discuss Roe v. Wade: and Planned Parenthood v. Casey: Lawrence, Reread Roe and
Read Planned Parenthood, (Majority opinion only ending at p579.)
Week 13: November 27 (Friday classes)
25. Justices Decide: Read: Chapter 2; Lawrence, Chapter
THANKSGIVING
Week 14: December 4/5 & 6
26. Section Meeting #7: In-Section review.
27. The Justices Decide: Factors that Influence Judicial Decision-Making (including the
merits). Read, Baum, Chapter 4.
Week 15: December 11
28. New and Controversial Cases in Bill of Rights Jurisprudence: Read Citizens United
(Speech) (To be supplied),
29. New and Controversial Cases in Bill of Rights Jurisprudence (Continued): Read: District
of Columbia v. Heller and McDonald v. Chicago, (Gun Ownership). (Links to these cases
will be supplied.)
Week 16: December 12
30. In Class Review.
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31. FINAL EXAMINATION, DATE AND TIME: TBA
STUDENTS MUST KEEP “HARD COPY” OF ALL WRITTEN ASSIGNMENTS FOR
THIS COURSE. ADDITIONALLY, STUDENTS MUST KEEP ALL GRADED
ASSIGNMENTS THAT HAVE BEEN RETURNED TO YOU. THIS WORK MUST BE
SAVED UNTIL SRPRING TERM 2011..