553: Unit 2

History 553: Law & American Society, Spring 2019

Part II: The Supreme Court in U.S. History

Intro | 1 | 2 | 3

8. The Marshall Court

READ: Peter Irons, A People’s History of the Supreme Court, 101 (Begin at “The third and final…) - 107; US Constitution ( in back of Irons), Article III; Irons, 111-115, 121-134; US Constitution (Article I, Section 8, 9, 10, commerce clause, necessary and proper clause, prohibition of state powers: “contract clause;” HANDOUT: Jeffrey Rosen on Marshall and Jefferson, pp. 46-47 and 56-57.

Use the document attached at the bottom of this page to take notes on how Marshall's rulings shaped the way we interpret specific parts of the Constitution. What were the central principles of Marshall’s jurisprudence? What is Irons’s assessment of Marshall? What is yours? Note the references to judicial activism and judicial restraint. Key Terms. In class, remind me to assign your roles for the PEA Supreme Court in the next class.

9. PEA Supreme Court and Race

READ: US Constitution (13th amendment); (14th amendment); Irons, People’s History, 198-201; 211-217; 221-232; HANDOUTS: Plessy v. Ferguson 163 U.S. 537--Brown's majority and Harlan's dissenting opinions.

Before you do anything, read the two amendments carefully, especially section 1 of the 14th amendment and its four clauses. An important goal in the oral arguments will be to decide what the two amendments mean and how they should be applied in this case. As you do the reading, consider the following: 1.) The meaning of the actual words of the amendments; 2.) The intent of the framers of the amendments; 3.) How the courts have interpreted the amendments up to this point and answered these questions (the precedents); as you read, decide how each relevant precedent would be used by each side to support its case and be ready to explain why; 4.) These key terms: police power and reasonable regulation, incidents of slavery and badge of inferiority, federalism, state action and private discrimination Key Terms

In class: The PEA Supreme Court convenes to hear oral argument. Well, something like that, but since this is our first time through, it will be more informal. Plaintiff’s and respondent’s lawyers will each have 15 minutes to prepare their arguments, while the Justices work together to prepare questions about the facts of the case, Constitutional issues, and precedents. We will then look at the line of argument constructed by each side, as well as the questions the justices would ask and figure out what would be the best responses each side could make.

10. The Supreme Court and the Industrial Revolution

READ: Irons, People’s History, 235-254; 258-9 (see below for the sections to read particularly carefully, reading the rest for the story and less for the detail); 263-264; Constitution in back of Irons, (Amendment 5) and (due process clause of Amendments 5 and 14); HANDOUT: Rosen on Holmes and Harlan, pp. 124-126.

Read the whole thing but be prepared to explain the cases assigned to you below. Make two columns, one for cases that uphold state police powers, the other for cases in which the court invalidated laws and identify the argument against the Constitutionality of each law. In your notes for each case, include: 1) the facts of the case 2) the Constitutional Issue, 3) the decision and 4) the reasoning behind it (is there a test being applied?).

We can divide responsibility accordingly: Munn v. Ill., In re Jacobs, Mugler v. Kansas: Those who represented Plessy last time. Chicago, Milwaukee and St. Paul Railway v. Minn., U.S. v. E.C. Knight: Those who represented the state of Louisiana against Plessy. Allgeyer v. LA., Holden v. Hardy: Those who were justices last time.

How did the Court respond to state and federal regulation of the economy in the late 19th century? Was the development of substantive due process good law? Where do you stand on the clash between liberty of contract and the police powers of government? (top of p. 241) Key Terms

11. Lochner v. New York

READ: Irons, People’s History, 254-258; HANDOUTS: "Fourteenth Amendment and Freedom of Contract, 282-289; and Watershed Cases: Lochner, 190-202

As you read, develop the questions that the justices will want answered in oral arguments. Consider the following categories for questions: Constitutional issues, facts of the case, the statute, precedents, tests, and the proper role of the judiciary and legislatures. Key Terms. In class, the PEA Supreme Court convenes to hear oral arguments.

At the end of this unit you will be writing a paper on YOUR jurisprudence. Print the Jurisprudence worksheet at the bottom of this page and use it to take notes on how you would judge if you were a Supreme Court justice. These notes will come in very handy when it comes time to write the next paper.

12. The Constitutional Revolution of '37

READ: Irons, People’s History, 294-325

Pay particular attention to: Home Building Loan v. Blaisdell, Nebbia v. NY, Schechter Poultry Corp v. US, Morehead v. Tipaldo, West Coast Hotel v. Parrish, NLRB v. Jones and Laughlin Steel Co.

Given its decisions culminating in Morehead v. Tipaldo, was FDR justified in seeking to change the composition of the Supreme Court? What is the significance of the "Constitutional Revolution" of 1937? Key Terms

13. The Supreme Court and the Nation at War

READ: Irons, People’s History, 187-189, 265-278, 348-361; US Constitution, Article 1, Section 9, (Writ of habeas corpus); Amendment I, (Speech)

To what extent do the Court’s decisions illustrate the aphorism that the laws are silent during wartime? Which of these cases would you have decided differently? On what grounds? What are the implications of these decisions for the current “war on terror?”Pay special attention to four cases: Milligan, Schenck, Abrams and Korematsu. Key Terms

14. Abrams v. U.S

READ: Irons, People’s History, 278-281; HANDOUTS: Abrams Opinion and Holmes dissent, and "Adams in Context" from Boston Globe letters to the editor.

The PEA Supreme Court convenes to hear oral arguments. Plaintiff’s and respondent’s lawyers will each have 15 minutes to prepare their case and 10 minutes each to present their briefs. The Justices may interrupt at any time to ask questions. At the end of oral argument the Justices will confer and reach a decision.

15. The Warren Court and Brown

READ: Irons, People's History, 386 (two paragraphs, from "May" to "one"), 393-400, HANDOUTS: selections on the Brown decision

Pay attention to the debate over Fact No. 8. How much weight should the justices give to that fact? How do the two sides differ on the facts, interpretation of the 14th Amendment, the role precedents should play in the case, and judicial philosophy.Key Terms

16. The Warren Court: Legacy

READ: Irons, People's History, 333-335, 400-420; read over the First Amendment carefully.

How many different rights are identified in the First Amendment? Pay special attention to: Cooper v. Aaron, the school prayer cases and Miranda. What was all the fuss about…all that "impeach Earl Warren"? Justified? What's your opinion of the school prayer cases?

17. Constitutional Interpretation: Breyer and Souter Jurisprudence:

READ: Toobin, The Oath, 128-130; HANDOUTS: Linter, Exploring Constitutional Conflicts: Theories of Constitutional Interpretation; and Posner, Excerpts from "What am I? A Potted Plant?" and "Bork and Beethoven"; and Farrell, "Scales of Justice"

Which of the interpretive guides to the Constitution makes most sense to you? What do Souter and Breyer each believe important in making their decisions on the court? What is the living Constitution?

18. Constitutional Interpretation: O'Connor v. Scalia

READ HANDOUTS: Rosen, "A Majority of One" and Talbot, "Supreme Confidence: The Jurisprudence of Justice Antonin Scalia" and Cohen, "Psst….Justice Scalia…You know, You're an Activist Judge, Too"

Compare and contrast the jurisprudence O'Connor and Scalia. As you take notes, make two columns one for each justice, listing elements of their approach to judging.

19. Roberts Court

READ: Toobin, The Oath, 35-45; 71-81, 86-93; 97-113

What are Roberts’ criticisms of the Warren court and do you agree? Why does Toobin think there is a war on precedent? What is the meaning of the second amendment?

20. Citizens United

READ: Toobin, The Oath, 145-163, 165-172, 180-185, 188-199

Pay close attention to Santa Clara, Buckley v. Valeo, McConnell v. FEC, Alito's question, Justice Kennedy's approach to freedom of speech, and Justice Stevens' dissent. What, according to Toobin is likely to be the impact of Citizens' United?

21. The Health Care Case

READ: Toobin, The Oath, 263-298

Why did Roberts decide as he did? Which is more important in the long run, his upholding of the Affordable Care Act or his ruling on the commerce clause?

22. Essay due. See assignments tab.

Intro | 1 | 2 | 3