Current Issues in the Supreme Court
GVPT 439C
Fall 2023

Professor Michael Spivey 
Office:  1135B Tydings Hall
Office Hours: After class on Mondays and Wednesdays and by request.
Email: mspivey@umd.edu



Course Content

This course will focus on the role of the Supreme Court in interpreting and applying the Constitution.  We will examine the role of the Supreme Court in the American constitutional republic including the concept of judicial review.  We will explore various theories of constitutional interpretation including: originalism, living constitutionalism, textualism, pragmatism and process theory.  We will then attempt to analyze how (or if) the Court uses these theories in addressing contemporary issues such as abortion and reproductive rights, marriage equality, religion and the state.  To do this, we will examine (very selectively) significant cases from the Roberts Court.  Among the questions we will address are: how does a ÒsupremeÓ court go about its work?  How should it?  Is there an ÒobjectiveÓ way to understand the Constitution?  When should it overrule decisions of the democratic majority?  How does it decide when to do so?  

 

Learning Outcomes

At the conclusion of this course, you should be able to:

1.  Explain the role of the Supreme Court in the American political system and the concept of judicial review and its implications.

2.  Understand and critiques various theories of constitutional interpretation and demonstrate an ability to apply those theories to current constitutional issues and controversies.  

3.  Demonstrate an ability to conduct legal research and collaborate with other students to present the results of that research.

4.  Demonstrate a deep understanding of current constitutional issues.



Course Requirements

1. Class Participation:  VERY IMPORTANT.  You should come prepared to discuss the readings each and every class.  Anyone can be called upon at any time.  This is not a lecture course.  Learning depends upon the active engagement of everyone.

2. Exams:  There will be a short ÒmidÓ-term exam, following the conclusion of the theory section of the course.  There will be a comprehensive final exam.

3. Class Presentation: You (and members of your Òlaw firmÓ) will lead a class discussion of one of the constitutional theories we discuss and one of the cases we discuss.  

4. Short Papers:  Everyone will prepare short 1-2 page reaction papers for the classes in which you are assigned as a respondent.  (I will discuss these more in class.)

Grading Criteria

Grades will be computed as follows:

Mid-Term					20%
Theory Presentation				25%
Case Presentation				25%
Final Exam	   				30%

Grades will be computed as follows:

A+   97-100
A     93-96
A-    90-92
B+   87-89
B     83-86
B-    80-82
(and so on)
F      59 or lower

I expect everyone to do at a minimum B work in this course so I will not have to give any other grades.  

Participation is a very important part of this course and will be evaluated upon a purely subjective basis taking into consideration the quality and quantity of your comments in class.  I reserve the right to adjust your final grade up or down based upon your class participation.  

I will ask you to evaluate your performance in the class as part of an ÒungradingÓ process.  I will discuss this more in class.


Required

Barber and Fleming, Constitutional Interpretation: The Basic Questions
The Constitution of the United States

Recommended

Coyle, The Roberts Court
Greenhouse, The U.S. Supreme Court: A Very Short Introduction (Oxford 2012)

For More Theory
Garvey, Aleinikoff and Farber, Modern Constitutional Theory: A Reader
OÕBrien, Judges on Judging: Views from the Bench, 5th ed. (CQ Press, 2016)




Great Web Sites

For current information about the Supreme Court: www.scotusblog.com

For transcripts of Supreme Court Cases and audio recordings: www.oyez.org


General Policies

1. Late Assignments.  Short Papers are due no later than 10 pm the day before the appropriate class.  You should post your paper on ELMS and bring a hard copy to me in class.  

2.  Make up Exams.  Exams including the Final Exam will be re-administered for those with excused absences only.  An absence can only be excused in advance.  

3.  Cell phones and computers.  ALL cellphones and computers must be turned off during class.  This is a discussion class so your active participation is required.  Studies have shown that multi-tasking is not productive or efficient.  Moreover, it is disrespectful and harmful to classmates.

4.  Attendance.  While I do not take attendance, I do make a mental note of those who are absent.  100% attendance is expected.  You cannot do well in this class if you are not in class to listen to and participate in the discussion. 

A complete discussion of all UMD undergraduate course policies can be found at: http://www.ugst.umd.edu/courserelatedpolicies.html.


Students with Disabilities

Students with disabilities who are registered with Disability Support Services (301-314-7682) are encouraged to meet with the instructor early in the semester to arrange appropriate academic accommodations.


Inclement Weather

Exams will be rescheduled for the next class meeting if the university is officially closed because of inclement weather.  Similarly, any assignments due should be turned in at the next class meeting.  Official closures and delays are announced on the campus website and snow phone line (301-405-SNOW) as well as local radio and TV stations.


Religious Holidays

For any assignment due on a religious holiday, you must make arrangements to submit the assignment before your absence.


Academic Honesty and Honor Code Pledge

The University of Maryland, College Park has a nationally recognized Code of Academic Integrity, administered by the Student Honor Council.  This Code sets standards for academic integrity at Maryland for all undergraduate and graduate students.  As a student you are responsible for upholding these standards for the course.  It is very important for you to be aware of the consequences of cheating, fabrication, facilitation and plagiarism.  For more information on the Code of Academic Integrity or the Student Honor Council, see http://www.studenthonorcouncil.umd.edu/whatis.html.

Academic honesty is taken very seriously in this course.  Plagiarism and any other infractions will be taken up with the appropriate university judicial proceedings.

Students should write and sign the following statement on the cover page of each paper they submit in this course, ÒI pledge on my honor that I have not given or received any unauthorized assistance on this assignment.Ó


OFFICE HOURS

Finally, I strongly encourage everyone to visit me during office hoursÑeven if you do not have specific questions to discuss.  It is a great way for me to get to know you and help you to be successful in this course.



Course Schedule
(I reserve the right to modify the syllabus at any time.  It is your responsibility to always be aware of changes.)


PART 1:  A ÒSUPREMEÓ COURT?  (And Other Issues)


 August 28:	Introduction
			
August 30:	Constitutional Gestalts, Constitutional Regimes and Constitutional Time
	Readings:
	Balkin, The Recent Unpleasantness: Understanding the Cycles of Constitutional Time
	Solum, How NFIB Affects Constitutional Gestalts (pp. 41-57)
	Wikipedia, Cyclical Theory 

September 6: Why a ÒSupremeÓ Court?: The Countermajoritarian Difficulty 
	Readings:  
	Marbury v. Madison
	Bickel, The Least Dangerous Branch, pp. 16-26 (on ELMS)
      Graber, The Countermajoritarian Difficulty (on ELMS)
Dorf, ÒMajoritarian Difficulty and Theories of Constitutional Decision MakingÓ (on ELMS)

September 4:  NO CLASS.  HAPPY LABOR DAY.

September 11: Neutrality:  Can the Court be ÒNeutralÓ?
	Readings:
	Wechsler, Neutral Principles
	Sunstein, Neutrality in Constitutional Law
	
September13: A Brief Detour: Substantive Due Process
	 Reading:
	Sandefur, In Defense of Substantive Due Process
	Green, Twelve Problems with Substantive Due Process

September 18:  Another Brief Detour: The Ninth Amendment
	Readings:
	Abrams, Rights of Ninth Amendment
	Berger, Ninth Amendment
		Williams, Ninth Amendment as Rule of Construction
		Seidman, Ninth Amendment


PART 2:  THEORIES OF CONSTITUTIONAL INTERPRETATION
  	
September 20:  The Warren Court and ÒLiving ConstitutionalismÓ
   		Readings:
CI, pp. 16-25
Marshall, ÒThe Constitution: A Living Document.Ó (on ELMS)
Brennan, Jr., ÒThe Constitution of the United States: Contemporary Ratification.Ó (on ELMS)
Rehnquist, ÒThe Notion of a Living Constitution.Ó (on ELMS)


September 25:  Originalism 1.0/2.0
		Readings:
		CI, Chaper 6
      Scalia, ÒOriginalism:  The Lesser Evil.Ó Chapter 21 in Judging 
		Meese III. 1988. ÒToward a Jurisprudence of Original Intent.Ó 
            District of Columbia v. Heller.  (Selections on ELMS)
      Stevens, Originalism and History.Ó (on ELMS)


September 27:  Moral Originalism? 
Readings:
CI, pp. 26-33
Dworkin, FreedomÕs Law (excerpts)



October 2:   Originalism 3.0: Common Good Originalism OR Beyond Originalism: Common Good Constitutionalism
	Readings:
Ward, Critics Call it Theocratic and Authoritarian
Vermeule, Beyond Originalism
Vermeule, Introduction-Common Good Constitutionalism
Hammer, Manly Originalism
	


October 4: Textualism, New Textualism and Intra-textualism: Is there an Answer in the Text?
      	Readings:  	
      CI, Chapter 5
Amar, Akhil Reed.  1999 ÒIntratextualism.Ó  Harv. L. Rev. 112(4): 747.  (Read pages 747-778; 795-802)
Bostock v. Clayton County 
Spivey, Torturing Textualism	

October 9:  Process Theory	
Readings: 
Baker v. Carr
Ely, John Hart.  1980.  Democracy and Distrust.  (selections on ELMS).

For additional reading:
Schachter, Jane S. 2011.  Ely at the Alter: Political Process Theory Through the Lens of the Marriage Debate..
Smith, Evan Barret.  2013. Representation Reinforcement Revisited: Citizens United and Political Process Theory.  
Tribe, Laurence H.  1980. ÒThe Puzzling Persistence of Process-Based Constitutional Theories.Ó  

 
 October 11:  Pragmatism/Consequentialism
		Readings: 
		CI, Chapter 11
      Breyer, Our Democratic Constitution.
Posner, Against Constitutional Theory.


October 16:  Judicial Minimalism OR do we need a Theory?
	Readings:
CI, Chapter 9
Sunnstein, Cass R.  2005. Testing Minimalism: A Reply.

October 18:  Judicial Review or Judicial Supremacy
      Readings:
      Bush v. Gore (Selections on ELMS)
Sager, ÒFair Measure: The Legal Status of Unenforced Constitutional Norms.Ó (On ELMS)
      Alexander and Schauer, ÒDefending Judicial Supremacy.Ó  (On ELMS)
      
      
      For Additional Consideration:
Lund, Nelson.  2001. ÒÔEqual Protection, My Ass!Õ? Bush v. Gore and Laurence TribeÕs Hall of Mirrors.Ó  	
Tribe, Laurence. 2002. ÒThe Unbearable Wrongness of Bush v. Gore.Ó  


October 23:  Take Home Mid-term Exam Due

			

PART 3:  THE ROBERTS COURT (or is it the Alito Court?)

October 23 and October 25: West Virginia v. EPA (2022)

October 30 and November 1: Bruen v. NY Gun and Pistol

November 6 and November 8: Kennedy v. Bremerton (2022)

November 13 and November 15: Dobbs v. Jackson WomenÕs Health Organization (2022)	
November 20: Catch up Day

November 27 and November 30: 303 Creative v. Elenis (2023)

December 4 and December 6:  SFFA v. Harvard (2023)	 


CONCLUSION

December 11:  Final Thoughts About the Supreme Court and the Constitution: The Most Dangerous Branch?
		

	
     
      	

      	
      
	


      


 
   	
   


     



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