Wednesday, August 12, 2015

POSC 3231: Judicial Politics


This course provides an introduction to the study of law and courts as political institutions and judges as political actors.  Topics include judicial behavior and policymaking, the politics of Supreme Court nominations, the role of public opinion in shaping judicial doctrine, and the impact of courts on society.  Because this is an American Pluralism course, a major objective of the course is to increase knowledge of how reform groups have used the courts to combat discrimination based on race, sex, and sexual orientation.  The course also explores how the structure of the legal system systematically advantages some litigants more than others based on class.  The primary institutional focus is the U.S. Supreme Court, but we also study other courts as well, including the state supreme courts and lower federal courts. 



Fall 2015


Required Texts
O’Brien, David M. 2014. Storm Center: The Supreme Court in American Politics. Tenth Edition. New York, NY: W.W. Norton & Company.

Spaeth, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York, NY: Cambridge University Press.

Rosenberg, Gerald N. 2008. The Hollow Hope: Can Courts Bring About Social Change? Second Edition. Chicago, IL: University of Chicago Press.

Hume, Robert J. 2013. Courthouse Democracy and Minority Rights: Same-Sex Marriage in the States. New York, NY: Oxford University Press.


I. Introduction: An Introduction to the U.S. Supreme Court
Reform groups routinely turn to American courts to address public policy problems, shaping policy on the subject of race, ethnicity, class, religion, gender, or sexual orientation. However, there has been much normative debate over the appropriateness of judges assuming this policymaking role. Empirically, it is also unclear whether judges are effective policymakers. We begin the course by engaging these debates.

9/4 Introduction: Courts of Law or Justice?

9/8 The Supreme Court as a National Policymaker: O’Brien, Chapters 1 & 3
 
9/11
Reflection Paper Due (due 9/11):  Find a recent newspaper article describing a circumstance in which a court played an active role in shaping American public policy in the area of race, ethnicity, class, religion, gender, or sexual orientation.  In a 2-3 page double-spaced paper, discuss the advantages and disadvantages of having a court set policy in this area.  In your view, should courts be making these types of policy choices, or should the responsibility be left to other branches of government?


II. Theories of Judicial Behavior
The conventional wisdom is that judges decide cases based on an objective application of legal principles to the facts of disputes. However, there is considerable evidence that judicial behavior is influenced by the ideology of judges, their personal background characteristics, and their other experiences. This unit of the course explores the evidence for different models of judicial behavior and discusses their normative implications.

A.  The Judicial Decision Making Process

9/15 Deciding Cases and Writing Opinions: O’Brien, Chapter 5

B. The Attitudinal Model

9/18 The Attitudinal Model: Segal & Spaeth: pp. 86-97; Blackboard (Holmes, "The Path of the Law")

9/22 Evidence for the Attitudinal Model: Segal & Spaeth: pp. 312-326; 357-381
9/25 Social Background Theory Blackboard (Tate, "Personal Attribute Models of the Voting Behavior of U.S. Supreme Court Justices"; Davis, Haire, and Songer, "Voting Behavior and Gender on the U.S. Courts of Appeals")

9/29 Challenges to the Attitudinal Model: Blackboard (Kozinski, "What I Ate for Breakfast and Other Mysteries of Judicial Decision Making")


B. The Legal Model

10/2 Stare Decisis: Segal and Spaeth, pp. 288-311
10/6 Jurisprudential Regimes/Legal Goals: Blackboard (Kritzer and Richards, "The Lemon Regime and Establishment Clause Cases"; Lindquist and Klein, "The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking")

C. The Strategic Model
10/9 Policy Choice Strategies: Blackboard (Wahlbeck, Spriggs, and Maltzman, "Marshalling the Court"; Segal, Westerland, and Lindquist, "Congress, the Supreme Court, and Judicial Review")

10/13 Instrument Choice Strategies: Blackboard (Hume, "The Use of Rhetorical Sources by the U.S. Supreme Court")

10/16 Midterm Exam


III. Courts and the American Public
To what extent are courts responsive to public opinion? In many states, the people elect judges, but research suggests that even appointed judges might be responsive to changes in public opinion. This research is divided, however, over whether appointed judges respond directly to shifts in the public mood or they respond indirectly through the appointment process. Still other research suggests that the influence of the public on judging is not uniformthe "haves" possess certain structural advantages in the American legal system that ensure that their interests are more likely to be reflected in the development of law and policy. We examine evidence about the relationship between courts and the American public and discuss whether the effective assistance of counsel has the potential to improve conditions for "have nots."

10/20 Appointments & The Indirect Influence of Public Opinion OBrien, Chapter 2

10/23 The Direct Influence of Public Opinion Blackboard (Mishler and Sheehan, "The Supreme Court as a Countermajoritarian Institution"; Flemming and Wood, "The Public and the Supreme Court")

10/27 Litigants & Lawyers Blackboard (Galanter, "Why the Haves Come Out Ahead"; McGuire, "Repeat Players in the Supreme Court")

10/30 Paper Two Due: In your second paper, you will analyze a case that is currently pending before the U.S. Supreme Court (Note: The specific case assignment will be made at the beginning of the Courts term, in the first week of October). In a 4-6 page essay, explain which of the leading theories of judicial behavior is the most helpful to you in predicting the outcome of this case and why. Use the theory to make a prediction about how the Court will rule in the case. When defending your choice, you should discuss the strengths and weaknesses of each of the leading theories of judicial behavior. You should also make reference to at least five law review articles (available through Lexis Nexis Academic Universe) and the lower court opinion (available on Blackboard).


IV. The Impact of Courts
Can courts be effective agents of social change? Reform groups have frequently turned to courts to protect minority rights, but skeptics doubt that courts can produce needed change without support from the other branchesor the public. We will study the impact of courts by looking at how judges have influenced social policy in several highly salient issue areas. We will devote particular attention to how the institutional design of courts influences the potential for judges to act as reform agents.

A. Overview
11/3 The Court and American Life OBrien, Chapter 6

B. The Dynamic and Constrained Court Models
11/6 Rosenbergs Thesis Rosenberg, pp. 1-36

C. The Hollow Hope



11/10 The Impact of Brown Rosenberg, pp. 39-71; 107-156

11/13 The Impact of Roe Rosenberg pp. 173-201; 228-246

11/17 The Backlash Thesis Blackboard (Klarman, "The Backlash Thesis")

D. The Impact of Courts on Same-Sex Marriage Policy
11/20 The Impact of State Supreme Courts Hume, Chapters 1 and 2

11/24 The Same-Sex Marriage Cases Hume, Chapters 3 and 4

12/1 Policy Initiation Hume, Chapter 5

12/4 Policy Legitimation Hume, Chapter 6

12/8 Policy Endurance Hume, Chapter 7-8

Paper Three Due: Choose an issue area in which a court has attempted to shape policy in the area of race, ethnicity, class, religion, gender, or sexual orientation. Your topic should be different from the issue areas studied in class in the unit on the impact of courts (i.e., desegregation, abortion, same-sex marriage), although you may write on related areas. In a 4-6 page double-spaced essay, discuss whether you think the influence of judges in this area has been dynamic or constrained. Your response should be based on assigned course readings as well as at least five law review articles about your topic (available through Lexis Nexis Academic Universe).



FINAL EXAM: TBA


COURSE POLICIES
Participation. Participation is an essential component of this course (10%). Students will not receive a satisfactory participation grade by simply attending class and sitting quietly: regular, thoughtful participation is required. The best way to ensure participation is to prepare comments in advanceafter you have finished your assigned readings, come up with a list of questions or observations that you would like to share with the other students.

Attendance: Attendance at all class meetings is mandatory, unless an absence is excused in advance. An unexcused absence will result in a reduction of your participation grade.


Exams. There will be three exams, worth 20% each. The third exam will be during final exam week, and is not cumulative. The exams include short-answer and essay questions.
Missed Exams. Exams will not be rescheduled except under extraordinary circumstances, and not unless arranged in advance. Legitimate excuses may include medical conditions (with appropriate documentation), family emergencies (with a deans excuse), or direct conflicts with other exams. You may not reschedule an exam because you feel tired, stressed, or overworked, so budget your time carefully. Unexcused absences will result in a failing grade for the exam.

Late Papers. Papers may not be rescheduled except under extraordinary circumstances. The same guidelines for rescheduling exams apply to papers (see above). Failure to submit a paper will result in a failing grade on the assignment.
Academic Integrity. Under no circumstances will cheating or plagiarism be tolerated. Plagiarism includes (but is not limited to) copying all or part of another students work, copying (or closely paraphrasing) all or part of another source without proper attribution (including internet sources), and incorrectly attributing sources. To enforce the Universitys standards for academic integrity, all students are required to submit written assignments to www.turnitin.com.



ASSIGNMENTS

1. Reflection Paper (due 9/11). Find a newspaper article (from within the past 5 years) describing a circumstance in which a court played an active role in shaping American public policy in the area of race, ethnicity, class, religion, gender, or sexual orientation. In a 2-3 page double-spaced paper, discuss the advantages and disadvantages of having a court set policy in this area. In your view, should courts be making these types of policy choices, or should the responsibility be left to other branches of government?
2. Paper Two (due 10/30). In your second paper, you will analyze a case that is currently pending before the U.S. Supreme Court (Note: The specific case assignment will be made at the beginning of the Courts term, in the first week of October). In a 4-6 pages essay, explain which of the leading theories of judicial behavior is the most helpful to you in predicting the outcome of the case and why. Use the theory to make a prediction about how the Court will rule in the case. When defending your choice, you should discuss the strengths and weaknesses of each of the leading theories of judicial behavior. You should also make reference to at least five law review articles (available through Lexis Nexis Academic Universe) and the lower court opinion (available on Blackboard).



3. Paper Three (due 12/8). Choose an issue area in which a court has attempted to shape government policy in the area of race, ethnicity, class, religion, gender, or sexual orientation. Your topic should be different from the issue areas studied in class in the unit on the impact of courts (i.e., desegregation, abortion, same-sex marriage), although you may write on related areas. In a 4-6 page double-spaced essay, discuss whether you think the influence of judges in this area has been dynamic or constrained. Your response should be based on assigned course readings as well as at least five law review articles about your topic (available through Lexis Nexis Academic Universe).





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