The Modern U.S. Supreme Court

LAW 685
Spring 2024

Outline & Readings

Notes:
(1) This is hardly an inclusive list of the many studies on the Roberts Court. If you're interested in additional readings, please contact Lee Epstein.
(2) The dates in parentheses are approximate. We'll try to stick to the schedule but departures may occur. At the end of each class we'll announce the topics for the next session.

Introductory Material
(January 26, January 27)

1. Supreme Court's Procedures/Processes

2. The Justices of the Roberts Court

3. Especially Salient Decisions of the Roberts Court

4. Public Confidence in the Court

5. Researching the Court

Readings

• Lee Epstein, Kevin McGuire, & Thomas G. Walker, Constitutional Law for a Changing America: A Short Course, 9th ed. (Washington, D.C: CQ Press/Sage, 2024), pp. 21-32

• Adam Liptak, “A Transformative Term at the Most Conservative Supreme Court in Nearly a Century,” New York Times, July 1, 2022

• Adam Liptak, “Along With Conservative Triumphs, Signs of New Caution at Supreme Court,” New York Times, July 1, 2023

• Adam Liptak, “A Battered Supreme Court Returns to Confront a Challenging Docket,” New York Times, October 1, 2023

• Adam Liptak, “Supreme Court’s Devotion to Gun Rights Faces a Challenging Test,” New York Times, November 7, 2023

• Adam Liptak, “How Conservatives Weaponized the First Amendment,” New York Times, New York Times, June 30, 2018

• Adam Liptak, “An Extraordinary Winning Streak for Religion at the Supreme Court,” New York Times, April 5, 2021

• Jodi Kantor & Adam Liptak, “Behind the Scenes at the Dismantling of Roe v. Wade,” New York Times, December 15, 2023.

• Adam Liptak, “Supreme Court Rejects Affirmative Action Programs at Harvard and U.N.C.,” New York Times, June 29, 2023

• Abbie VanSickle & Adam Liptak, “Supreme Court Adopts Ethics Code After Reports of Undisclosed Gifts and Travel,” New York Times, November 13, 2023

• Adam Liptak, “Justice O’Connor’s Judicial Legacy Was Undermined by Court’s Rightward Shift,” New York Times, December 1, 2023

• Adam Liptak, “An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars,” New York Times, December 19, 2022

Appointing Supreme Court Justices
(January 27)

1. Vacancies

2. Nomination

3. Confirmation

Readings

• Frederic J. Frommer, “‘I Would Vote to Impeach Him Right Now’: When Republicans Tried to Oust a Supreme Court Justice, It Didn’t Go Well,” Politico, September 16, 2022

• (optional) Please listen to President Franklin D. Roosevelt propose expanding the size of the Court

• Adam Liptak, “The Precedent, and Perils, of Court Packing,” New York Times, October 12, 2020 (the accompanying report is here)

• Elizabeth Dias & Adam Liptak, “To Conservatives, Barrett Has 'Perfect Combination' of Attributes for Supreme Court,” New York Times, September 20/October 26, 2020

• Adam Liptak, “Avoid, Sidestep, Retreat: Justices’ Advice on Confirmation Tactics,” New York Times, March 19, 2017

• Adam Liptak, “After Three Rounds, Judge Jackson Knows the Confirmation Playbook,” New York Times, March 21, 2022

Access to the Court
(January 27)

1. The Emergency Docket

2. Cert Petitions

3. Processing Petitions

4. Clerks

5. Certworthy Petitions and the Roberts Court

Readings

• Adam Liptak, “A Sign of the Court’s Polarization: Choice of Clerks,” New York Times, September 6, 2010

• Adam Liptak, “The Road to a Supreme Court Clerkship Starts at Three Ivy League Colleges,” New York Times, February 6, 2023

• Abbie VanSickle & Steve Eder, “Clarence Thomas’s Clerks: An ‘Extended Family’ With Reach and Power,” New York Times, December 24, 2023

• The Echo Chamber (A Small Group of Lawyers and Its Outsized Influence at the U.S. Supreme Court), Reuters, December 8, 2014. Please read the story and watch the video, “Familiar Voices”

Lawyering
(January 27, February 2)

1. Types of Lawyers

2. Tools of Lawyering: Briefs, Oral Argument

Readings

• Theodoric Meyer and Tobi Raji, “Historically Diverse Supreme Court Hears Disproportionately from White Lawyers,” Washington Post, October 30, 2022

• (optional) Richard J. Lazarus, “Advocacy Before and Within the Supreme Court,” 96 Georgetown Law Journal 1487 (2008)

• Adam Liptak, “Justice Clarence Thomas, Long Silent, Has Turned Talkative,'“ May 3, 2021

Decision Making
(February 9)

1. Processing Cases

2. Making Decisions

Readings

• (skim) Lee Epstein, William M. Landes, & Richard A. Posner, The Behavior of Federal Judges (Cambridge, MA: Harvard University Press, 2013), pp. 110-116

• (optional, pp. 12-22) Lee Epstein, Urska Sadl, & Keren Weinshall, “The Role of Comparative Law in the Analysis of Judicial Behavior,“ 69 American Journal of Comparative Law 689 (2021)