Princeton University

Department of Politics

POL 565 Theories of Judicial Review Fall 2011

Keith E. Whittington 240 Corwin Hall, 258-3453 [email protected]

M 1:30-4:20 127 Corwin Hall

Perhaps the central issue in academic constitutional theory in the twentieth century has concerned the proper scope and legitimacy of judicial review. Although the legitimacy of the basic practice of judicial review has been widely accepted by both political actors and commentators since the early nineteenth century, the scope of that practice has been intermittently politically controversial and regularly intellectually troubling. Although we have accepted judicial review as a matter of historical fact, there is substantial disagreement as to how the practice should or could be justified. Relatedly, there are substantial disagreements as to when and how the power of judicial review should be exercised, if it should be exercised at all. This normative debate, with particular applications to judicial cases and doctrine, largely defines contemporary constitutional theory. This course will provide an introduction to that debate, while also situating those arguments within the context of empirical studies of judicial behavior and the Courts relationship to American politics. The empirical literature can add depth to the normative argument over what the Courts role in the political system can and should be. Perhaps more importantly, the empirical literature may also shed useful light on our understanding of what role the Court has played within the political system and the empirical assumptions that are embedded within the normative literature. Ultimately, the empirical and the normative should be linked. The debate over judicial review is primarily an American debate, shaped by the particulars of American history and political ideology. Constitutional courts in other countries have also, intentionally, been designed differently than the American system, complicating comparisons. Thus, although placing the American debate in a comparative context (international and intranational) would be welcome, the readings are centrally concerned with debates over the U.S. Supreme Court. This is not a course in constitutional law, but some familiarity with constitutional law may be helpful. If you need more to refresh yourself on American constitutional history, I suggest Robert McCloskeys The American Supreme Court, Lucas Powes The Supreme Court and the American Elite, and Alfred Kelly, Winfred Harbison and Herman Belzs The American Constitution. There are a number of American constitutional law casebooks available, including Howard Gillman, Mark Graber, and Keith Whittington, American Constitutionalism. Laurence Tribes comprehensive treatise, American Constitutional Law, is also helpful. An overview of the law and politics field can be found in The Oxford Handbook of Law and Politics. The topics under examination this semester are only a selection of the possible ones. Not only will our examination of each individual topic necessarily be limited, but there will also be other topics concerning theories of judicial review, constitutional and statutory interpretation, adjudication, and judicial behavior that will not be examined at all. These readings should relate not only to the other readings within a given week, but also to other readings in the semester and to other topics not discussed this semester. Class discussion in any given week should be permeable to those concerns. The syllabus provides a brief comment on each weeks readings. The questions asked in those comments are at best starting points for your thinking, and are merely intended to help orient you toward that weeks material in the context of the course. Those suggested questions are also framed in a rather general fashion, and do not explore the specifics raised by the assigned readings. You should certainly be thinking about those specifics, as well as how the readings relate to our general concerns.

Schedule: The Normative and Legal Debate 1. February 2: Introduction: The Problem of Judicial Review

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Materials:

February 9: The Activism Debate February 16: Democracy, Reason and Neutrality February 23: Fundamental Values March 2: Reinforcing Democracy March 9: Originalism March 23: Judicial Supremacy v. Popular Constitutionalism March 30: The Countermajoritarian Court? April 6: Constructing Judicial Review April 13: Entrenchment and Judicialization April 20: Dialogues and Constraints April 27: Litigation and Impact

The following books are available for purchase at the University Store: Alexander Bickel The Least Dangerous Branch John Hart Ely Democracy and Distrust Keith Whittington Political Foundations of Judicial Supremacy Tom Clark, The Limits of Judicial Independence The remaining readings are on electronic reserve at the library or on Blackboard. Requirements: Seminar participants will prepare two short papers of 6-8 pages each and one substantial literature review or review essay of 68 pages during the course of the semester. Each short paper is to explore some problem arising from or addressed by the readings of a selected week. There is no reason why two or even three of your papers could not address different facets of a common problem. The papers may be guided by the suggested questions provided in the syllabus, but they are by no means constrained by those suggestions. The literature review or review essay should be framed around a work or topic suggested by a given week of the syllabus. The essay should provide an original, synthetic, and analytical accounting of the subject at hand. It should integrate at least seven relevant sources into the discussion. This is not a short book review, of the type that can be found in Perspectives on Politics or the Law and Politics Book Review (http://www.bsos.umd.edu/gvpt/lpbr), which are generally limited to under 2000 words and focused on summary and quick evaluation of a single book. Some useful tips on writing a literature review can be found at http://www.writing.utoronto.ca/advice/specific-types-of-writing/literature-review. Literature reviews can be found as a section in most journal articles and as a chapter or portion of a chapter in most dissertations and some academic books. Good examples can be found in JOP 72 (2010): 767; JOP 72 (2010): 747; JOP 72 (2010): 672. Stand-alone review essays are related but take a somewhat different form. Examples can be found in journals like Reviews in American History, Law and Social Inquiry, Political Theory, as well as some law reviews, annuals and handbooks. For some models, consider LSI 24 (1999): 221; LSI 17 (1992): 715; LSI 34 (2009): 747. You have flexibility in choosing the thesis and central works for the review, so long as it connects to a specific week in the syllabus. Each paper should include a brief abstract (150-500 words). Papers should not simply be read at the seminar, but you should be prepared to present an oral version of your argument. The oral presentation should develop the argument contained in your paper and initiate that days discussion. Papers will be scheduled at the beginning of the semester and are due the day before the relevant seminar. They should be emailed to me and the other seminar participants by 5:00 pm on the preceding Thursday, if not before. The required readings are absolutely required. You are expected to have read thoroughly and thought about each of these readings before every class. The suggested readings are for your further consideration and reference. You are welcome to make use of the suggested readings in preparing your papers, and to incorporate them as appropriate for the benefit of the other participants. The suggested readings are sometimes directly related to the required readings. In other weeks, the suggested readings are a diverse collection of interesting works that raise related questions.

Each of the three papers will constitute a quarter of your final grade, with the remainder determined by participation.

Readings: 1. Introduction: The Problem of Judicial Review (February 2) The practice of judicial review has become an important problem for democratic and liberal theory and for descriptive political science in the twentieth century. But of course it began as the assertion by a judicial body of a legal power under the written Constitution. The legality of that initial assertion has itself been controversial. Was the power of judicial review implicit in the Constitution, or was it the creation of the Marshall Court? Is Marbury v. Madison an instance of careful legal judgment or early judicial activism? Is judicial review a legal doctrine or a political power, or both? Required: Alexander Hamilton The Federalist Papers, No. 78 Brutus XI, XII, XV Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163-180 (1803) Nicholas Quinn Rosenkranz, The Subjects of the Constitution, Stanford Law Review 62 (2010): 1209 Suggested: Edward S. Corwin The Doctrine of Judicial Review Edward S. Corwin, The Higher Law Background of American Constitutional Law William Van Alstyne A Critical Guide to Marbury v. Madison, Duke Law Journal 1969 (1969): 1 William Crosskey Politics and the Constitution Charles Grove Haines The American Doctrine of Judicial Supremacy Robert L. Clinton Marbury v. Madison and Judicial Review Sylvia Snowiss Judicial Review and the Law of the Constitution Coke Dr. Bonham's Case 8 Co. 114 (C.P. 1610) Coke Calvin's Case 7 Co. 1, 12-14 (C.P. 1609) Commonwealth v. Caton et al. 4 Call 5 (Va. 1782) Kamper v. Hawkins 1 Va. Cases 20 (1793) VanHorne's Lessee v. Dorrance 2 U.S. (2 Dall.) 304 (1795) Calder v. Bull 3 U.S. (3 Dall.) 386 (1798) Eakin v. Raub 12 Serg. & Rawle 330, 344 (Pa. 1825) Raoul Berger Congress v. the Supreme Court David E. Engdahl, John Marshalls Jeffersonian Concept of Judicial Review, Duke Law Journal 42 (1992): 279 John Harrison, The Constitutional Origins and Implications of Judicial Review, Virginia Law Review 84 (1998): 333 Dean Alfange, Jr., Marbury v. Madison & Original Understandings of Judicial Review, The Supreme Court Review, 1993 Philip Hamburger, Law and Judicial Duty James A. OFallon, Marbury, Stanford Law Review 44 (1992): 219 Richard Ellis The Jeffersonian Crisis Robert K. Faulkner The Jurisprudence of John Marshall S. Bloch & M. Marcus, John Marshalls Selective Use of History in Marbury, Wisconsin Law Review 1986 (1986): 301 David Currie The Constitution in the Court: The First Hundred Years Andrew C. McLaughlin, Marbury v. Madison Again, ABA Journal 14 (1928): 155 George L. Haskins and Herbert A. Johnson, The History of the Supreme Court: Vol. 2, Foundations of Power Brinton Coxe Judicial Power and Unconstitutional Legislation Andrew C. McLaughlin The Courts, the Constitution, and Parties James R. Stoner, Jr. Common Law and Liberal Theory Christopher Wolfe The Rise of Modern Judicial Review Wallace Mendelson, Was Marshall an Activist? in Supreme Court Activism and Restraint, eds. Halpern and Lamb J.A.C. Grant, Marbury v. Madison Today, American Political Science Review 23 (1929): 673 George L. Haskins, Law versus Politics in the Early Years of the Marshall Court, U. of Penn. Law Review 130 (1981): 1 William E. Nelson, The 18th Century Background of Marshalls Constitutional Jurisprudence, Mich. L. Rev. 76 (1978): 893 William E. Nelson, Changing Conceptions of Judicial Review, U. of Penn. L. Rev. 120 (1972): 1166 Robert L. Fowler, The Origins of the Supreme Judicial Power in the Federal Constitution, American Law Rev 29 (1895): 711 William M. Meigs, The Relation of the Judiciary to the Constitution, American Law Review 19 (1885): 175

2. The Activism Debate (February 9) The public debate over judicial review primarily revolves around denunciations of judicial activism. Unfortunately the term does not have any clear content, though it does have a fairly clear valence (nobody likes activism, whatever it might be). Nonetheless, some basic notion of activism underlies the normative scholarly debate over judicial review as well. Is there anything worth salvaging here? Is judicial activism a bad thing? Required: James Bradley Thayer The Origin and Scope of the American Doctrine of Constitutional Law, Harvard Law Review 7 (1893): 129 Bradley C. Canon, Defining the Dimensions of Judicial Activism, Judicature 66 (1983): 237. Gregory A. Caldeira and Donald J. McCrone, Of Time and Judicial Activism: A Study of the U.S. Supreme Court, 18001973, in Supreme Court Activism and Restraint, eds. Halpern and Lamb Philip Hamburger, A Tale of Two Paradigms: Judicial Review & Judicial Duty, George Washington L. Rev. 78 (2010): 1162 Keith E. Whittington & Tom Clark, Ideology, Partisanship & Judicial Review of Acts of Congress, 1789-2006 (manuscript)

Suggested: Christopher Wolfe, ed., Judicial Activism Christopher Wolfe, ed., That Eminent Tribunal Kenneth Holland, ed., Judicial Activism in Comparative Perspective Stephen Halpern and Charles Lamb, eds., Supreme Court Activism and Restraint David Forte, ed., The Supreme Court in American Politics Paul Carrese, Cloaking of Power Stephen Powers and Stanley Rothman, The Least Dangerous Branch? Herman Schwartz, ed., The Rehnquist Court Thomas Keck, The Most Activist Supreme Court in History Frederick Lewis, The Context of Judicial Activism Keith Schlesinger, The Power that Governs Arthur Miller, Toward Judicial Activism Mitchell Muncy, ed., The End of Democracy? Mitchell Muncy, ed., The End of Democracy II? Matthew Franck, Against the Imperial Judiciary Robert Bork, Coercing Virtue Robert Bork, The Tempting of America Bradley Watson, ed., Courts and the Culture War Gary McDowell, Curbing the Courts Richard Neely, How Courts Govern America John Daly, ed., An Imperial Judiciary: Fact or Myth? Mark Kozlowski, The Myth of the Imperial Judiciary Jamin Raskin, Overruling Democracy Herman Schwartz, Packing the Courts Robert McKeever, Raw Judicial Power? Frances Rudko, Trumans Court Lane Sutherland, Popular Government and the Supreme Court Stephen Macedo, The New Right v. the Constitution Martin Garbus, Courting Disaster Keenan Kmiec, The Origins and Current Meaning of Judicial Activism, California Law Review (2004) Sujit Choudhry & Claire Hunter, Measuring Judicial Activism on the Supreme Court of Canada, McGill Law Journal 48 (2003): 525 Lino Graglia, The Myth of the Conservative Supreme Court, Harvard J. of Law and Public Policy 26 (2003): 281 Symposium: Conservative Judicial Activism, University of Colorado Law Review 73 (2002) Symposium: Judicial Activism in the States, Benchmark 4 (1988) J. Skelly Wright, The Judicial Right and the Rhetoric of Restraint, Hastings Con Law Quarterly 14 (1987): 487

3. Democracy, Reason and Neutrality (February 16) The Lochner era of the late nineteenth and early twentieth centuries provoked a crisis for the Court and the power of judicial review. By the time of the New Deal, a substantial body of Progressive-minded legal thought questioned the value and process of judicial review. The Courts capitulation to the Roosevelt administration was seen by many to mark the beginning of a new era of judicial restraint. The Warren Court forced a rethinking of the value of judicial review in light of progressive judicial activism. The core concerns of modern constitutional theory were laid out in this era. How can democracy and judicial review be reconciled? How can judicial review be anything other than the exercise of raw political power? Can the courts be distinguished from legislatures in any meaningful way? In particular, are courts more principled and reasonable than legislatures, and is that sufficient to justify judicial review? Required: Karl Llewellyn, A Realistic Jurisprudence The Next Step, Columbia Law Review 30 (1930): 431 Learned Hand The Bill of Rights pp. 66-77 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, Harvard Law Review 73 (1959): 1 Alexander M. Bickel, The Least Dangerous Branch pp. 1-127 Alpheus Thomas Mason Judicial Activism: Old and New, Virginia Law Review 55 (1969): 385 Suggested: Arthur Miller & Ronald Howell The Myth of Neutrality in Constitutional Adjudication, U. of Chicago L. Rev. 27 (1960): 661 Henry M. Hart, Jr. A Time Chart of the Justices, Harvard Law Review 73 (1959): 84 Erwin Griswold, Of Time and Attitudes Professor Hart and Judge Arnold, Harvard Law Review 74 (1960): 81 Thurman Arnold, Professor Harts Theology, Harvard Law Review 73 (1960): 1298 Alexander Bickel and Harry Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, Harvard Law Review 71 (1957): 1 Gerald Gunther, The Subtle Vices of the Passive Virtues A Comment on Principle and Expediency in Judicial Review, Columbia Law Review 64 (1964): 1 Skelly Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, Harvard Law Review 84 (1971): 769 Charles Clark, A Plea for the Unprincipled Decision, Virginia Law Review 49 (1963): 660 Charles Clark and David Trubek, The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition, Yale Law Journal 71 (1961): 255 Benjamin F. Wright, The Supreme Court Cannot be Neutral, Texas Law Review 40 (1962): 599 Martin Shapiro The Supreme Court and Constitutional Adjudication: Of Politics and Neutral Principles, George Washington Law Review 31 (1963): 587 Mark Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, Harvard Law Review 96 (1983): 781 Hans Linde, Judges, Critics, and the Realist Tradition, Yale Law Journal 82 (1972): 255 Robert K. Faulkner, Bickels Constitution: The Problem of Moderate Liberalism, APSR 72 (1978): 925 Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, NYU Law Review 73 (1998): 333 Alexander Bickel The Supreme Court and the Idea of Progress Lon Fuller The Morality of Law Robert H. Jackson The Struggle for Judicial Supremacy Charles Grove Haines The American Doctrine of Judicial Supremacy Charles Black The People and the Court William Ross A Muted Fury Eugene Rostow The Democratic Character of Judicial Review, Harvard Law Review 66 (1952): 193 Thomas Reed Powell The Logic and Rhetoric of Constitutional Law, J. of Phil., Psych. & Scientific Method 15 (1918): 645 Joseph Hutcheson, The Judicial Intuitive: The Function of the Hunch in Judicial Decision, Cornell Law Q. 14 (1929): 274 Roscoe Pound, Mechanical Jurisprudence, Columbia Law Review 8 (1908): 605 Roscoe Pound, Liberty of Contract, Yale Law Journal 18 (1909): 454 Roscoe Pound, The Theory of Judicial Decision, Harvard Law Review 36 (1923): 641 Karl Llewellyn, Some Realism about Realism Responding to Dean Pound, Harvard Law Review 44 (1931): 1222 Jerome Frank Law and the Modern Mind

Jerome Frank Courts on Trial Jan G. Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections between Law and Political Science, Stanford Law Review 20 (1968): 169 Alpheus Thomas Mason Judicial Activism: Old and New, Virginia Law Review 55 (1969): 385 Louis Boudin Government by Judiciary Edward S. Corwin The Twilight of the Supreme Court Edward S. Corwin Constitutional Revolution, Ltd. Edward Leuchtenberg The Supreme Court Reborn Charles Beard, The Supreme Court and the Constitution Henry Steele Commager Judicial Review and Democracy, Virginia Quarterly Review (1943): 417 Eugene Rostow The Sovereign Prerogative Barry Friedman, Neutral Principles: A Retrospective, Vanderbilt Law Review 50 (1997): 503 Kent Greenawalt, The Enduring Significance of Neutral Principles, Columbia Law Review 78 (1978): 982 Robert H. Bork, Neutral Principles and Some First Amendment Problems, Indiana Law Journal 47 (1971): 1 Gary Peller, Neutral Principles in the 1950s, Journal of Law Reform 21 (1988): 561 G. Edward White, Patterns of American Legal Thought Edward A. Purcell The Crisis of Democratic Theory Neil Duxbury Patterns of American Jurisprudence ch. 4 Stephen M. Griffin, What is Constitutional Theory? The Newer Theory and the Decline of the Learned Tradition, Southern California Law Review 62 (1989): 493 One Hundred Years of Judicial Review: The Thayer Centennial Symposium, Northwestern University Law Review 88 (1993): 1 John Dewey, Logical Method and Law, Cornell Law Quarterly 10 (1924): 17 Charles Warren The Supreme Court in United States History

4. Fundamental Values (February 23) The legal process school of the 1950s and early 1960s emphasized principle, but their conception of principle was relatively thin and legalistic. As scholars became more comfortable with the Warren Court, a more explicitly and substantively rich values approach to constitutional jurisprudence was developed. Judicial review might be justified by the important values that it advanced. If the children of the New Deal were centrally concerned with establishing the primacy of democracy over controversial rights claims, the children of the Warren Court were centrally concerned with identifying rights as trumps over democratic outcomes. Can the enforcement of fundamental values provide an adequate justification for judicial review? Must the Court be limited to those values contained within the Constitution or traditionally recognized in the law? Can the fundamental values approach be rationalized with the Court as a judicial institution and with the inherited Constitution as written? What values should be enforced? How should they be generated? Can the Warren Court be justified without also justifying the Lochner Court? Required: Thomas C. Grey, Do We Have an Unwritten Constitution? Stanford Law Review 27 (1975): 703 Ronald Dworkin, Taking Rights Seriously ch. 5 Larry Alexander, The Constitution as Law, Constitutional Commentary 6 (1989): 103 Jeremy Waldron, The Core of the Case against Judicial Review, Yale Law Journal 115 (2006): 1346 W.J. Waluchow, A Common Law Theory of Judicial Review, ch. 6 Suggested: Lawrence G. Sager, The Incorrigible Constitution, NYU Law Review 65 (1990): 893 Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law and American Revolutionary Thought, Stanford Law Review 30 (1978): 843 Thomas C. Grey, The Constitution as Scripture, Stanford Law Review 37 (1984): 1 Thomas C. Grey, The Uses of an Unwritten Constitution, Chicago-Kent Law Review 64 (1988): 211 Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, Yale Law Journal 90 (1981): 1063 Ronald Dworkin Laws Empire Ronald Dworkin Taking Rights Seriously Michael Perry Morality, Politics and Law Michael Perry The Constitution, the Courts, and Human Rights Laurence Tribe and Michael Dorf On Reading the Constitution Hadley Arkes Beyond the Constitution Sotirios Barber The Constitution of Judicial Power Sotirios Barber On What the Constitution Means Graham Walker The Moral Foundations of the Constitution Scott Gerber To Secure These Rights David A.J. Richards Toleration and the Constitution David A.J. Richards, Moral Philosophy & the Search for Fundamental Values in Con. Law, Ohio St. L. J. 42 (1981): 319 Rogers Smith Liberalism and American Constitutional Law Richard Epstein Takings Steven Smith The Constitution and the Pride of Reason Daniel O. Conkle, Nonoriginalist Constitutional Rights and the Problem of Judicial Finality, Hastings Con L. Q. 13 (1985): 9 Randy Barnett, Getting Normative: The Role of Natural Rights in Constitutional Adjudication, Const. Comm. 12 (1995): 93 Owen Fiss The Supreme Court, 1978 Term Forward: The Forms of Justice, Harvard Law Review 93 (1979): 1 Jeremy Waldron Moral Truth and Judicial Review, American Journal of Jurisprudence 43 (1998): 75 Symposium: Constitutional Adjudication and Democratic Theory, NYU Law Review 56 (1981): 259 Chris Eisgruber, Dred Again: Originalisms Forgotten Past, Constitutional Commentary 10 (1993): 37 Chris Eisgruger, Justice and the Text: Rethinking the Constitutional Relationship between Principle and Prudence, Duke Law Journal 43 (1993): 1 Chris Eisgruber, Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism, University of Chicago Law Review 55 (1988): 273 James A. Gardner, The Failed Discourse of State Constitutionalism, Michigan Law Review 90 (1992): 761

5. Reinforcing Democracy (March 2) As we saw last week, one common response to Bickels countermajoritarian difficulty is to deny that countermajoritarianism raises any problems at all to defend an activist Court and constitutional rights as trumps. Another option is to seek to avoid the difficulty by charging the Court with reinforcing and facilitating democracy rather than checking it. Limiting the Court to actions that can reinforce democracy has also been advocated as a way for the Court to avoid the Lochner problem of making controversial value judgments. What does democracy require and how might the Court reinforce it? Can the Court claim democratic credentials? Is reinforcing democracy an adequate role for the Court? Is it a possible role for the Court? Would this mission resolve the Courts legitimacy problems? Required: United States v. Carolene Products, 304 U.S. 144 (1938) John Hart Ely Democracy and Distrust Mark Tushnet, Darkness on the Edge of Town: Contributions of John Hart Ely to Constitutional Theory, Yale L. J. (1980) Christopher Eisgruber, Constitutional Self-Government ch. 2 Richard H. Pildes, The Constitutionalization of Democratic Politics, Harvard L.Rev. (2004) 28-82, 153-154 Suggested: Jesse Choper Judicial Review and the National Political Process Symposium: Judicial Review and Democracy, Ohio State Law Journal 42 (1981): 1 Symposium: Constitutional Adjudication and Democratic Theory, NYU Law Review 56 (1981): 259 Symposium: Democracy and Distrust: Ten Years Later, Virginia Law Review 77 (1991): 631 Symposium: The Republican Civic Tradition, Yale Law Journal 97 (1998): 1493 Lawrence Sager Rights Skepticism and Process-Based Responses New York University Law Review 56 (1981): 417 Laurence Tribe The Puzzling Persistence of Process-Based Constitutional Theories, Yale Law Journal 89 (1980): 1065 David Lyons Substance, Process, and Outcome in Constitutional Theory, Cornell Law Review 72 (1987): 745 Daniel Ortiz Pursuing a Perfect Politics: The Allure and Failure of Process Theory, Virginia Law Review 77 (1991): 721 Michael J. Klarman The Puzzling Resistance to Political Process Theory Virginia Law Review 77 (1991): 747 Michael J. Klarman Majoritarian Judicial Review: The Entrenchment Problem, Georgetown Law Journal 85 (1997): 491 Samuel Issacharoff Judging Politics: The Elusive Quest for Judicial Review, Texas Law Review 71 (1993): 1643 Frederick Schauer Judicial Review of the Devices of Democracy, Columbia Law Review 94 (1994): 1326 Einer R. Elhauge Does Interest Group Theory Justify More Intrusive Judicial Review? Yale Law Journal 101 (1991): 31 Daniel Farber and Phillip Frickey Law and Public Choice: A Critical Introduction Robert Cover The Origins of Judicial Activism in the Protection of Minorities, Yale Law Journal 91 (1982): 1287 Bruce Ackerman Beyond Carolene Products, Harvard Law Review 98 (1985): 713 Frank Michelman Laws Republic Yale Law Journal 97 (1988): 1493 Frank Michelman, Traces of Self-Government, Harvard Law Review 100 (1986): 4 Frank Michelman, Human Rights and the Limits of Constitutional Theory, Ratio Juris 13 (2000): 63 Jurgen Habermas Between Facts and Norms ch. 4, 5, 6 Mark Tushnet Red, White and Blue: A Critical Analysis of Constitutional Law Daniel Farber and Phillip Frickey Is Carolene Products Dead? 79 California Law Review 79 (1991): 685 Gregory Basham Freedoms Politics, Notre Dame Law Review 72 (1997): 1235 Michael McConnell The Importance of Humility in Judicial Review: A Comment on Dworkins Moral Reading of the Constitution Fordham Law Review 65 (1997): 1269 Brennan Center Symposium on Constitutional Law California Law Review 86 (1997): 399 Robert Burt The Constitution in Conflict Jeremy Waldron Law and Disagreement ch. 12, 13 James Fleming, Constructing the Substantive Constitution, Texas Law Review 72 (1993): 211 Lane Sunderland, Constitutional Theory and the Role of the Court: An Analysis of Contemporary Constitutional Commentators, Wake Forest Law Review 21 (1986): 855 Steven Gey, The Unfortunate Revival of Civic Republicanism, University of Pennsylvania Law Review 141 (1993): 801 Stephen Feldman, The Persistence of Power and Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism, Georgetown Law Journal 81 (1993): 2243 Michael Klarman, Majoritarian Judicial Review: The Entrenchment Problem, Georgetown Law Journal 85 (1997): 491

6. Originalism and Interpretation (March 9) Fundamental values and democratic justifications for judicial review offer substantive, functional defenses of the Court. A more traditional alternative that received renewed attention over the past two decades reemphasizes the legal role of the Court as an interpreter of the Constitution. Rather than going beyond the Constitution to enforce some particular value, the Court should instead focus on interpreting the Constitution as written and enforcing its various commitments. Constitutional theory joined the interpretive turn that was made by much of the humanities and social sciences, exploring the implications and possibilities of textual interpretation and the role that texts play within interpretive communities. A prominent but not the only interpretive theory is originalism, that the Court should enforce the Constitution as the Founders understood it. Why interpret? What is the authority of the text? What is the Constitution? What is required by constitutional interpretation? Is interpretation possible? Can interpretation be distinguished from originalism? What is the authority of the Founders? What does originalism require? Required: Keith Whittington, Constitutional Interpretation pp. 50-76, 195-212 Ronald Dworkin, A Matter of Principle ch. 2 Stephen Griffin, Rebooting Originalism, University of Illinois Law Review (2008) Jack Balkin, Framework Originalism and the Living Constitution Northwestern University Law Review (2009) Jeffrey Goldsworthy, Raz on Constitutional Interpretation, Law and Philosophy (2003) Suggested: Gregory Bassham, Original Intent and the Constitution Daniel Farber, The Originalism Debate: A Guide for the Perplexed, Ohio State Law Journal 49 (1989): 1085 Ronald Dworkin Taking Rights Seriously ch. 4-5 Ronald Dworkin, A Matter of Principle ch. 5-7 Ronald Dworkin Laws Empire Ronald Dworkin Freedoms Law ch. 12-17 Jeffrey Goldsworthy, Dworkin as an Originalist, Constitutional Commentary 17 (2000): 49 Keith Whittington, Dworkins Originalism: The Role of Intentions in Constitutional Interpretation, Review of Politics 62 (2000): 5 Randy E. Barnett, An Originalism for Nonoriginalists, Loyola Law Review 45 (1999): 611 Stephen Munzer and James Nickel, Does the Constitution Mean What It Always Meant? Columbia L. Rev. 77 (1977): 1029 Antonin Scalia, et al. A Matter of Interpretation Michael Perry The Constitution in the Courts Robert H. Bork The Tempting of America Robert H. Bork, Styles in Constitutional Theory, South Texas Law Journal 26 (1985): 383 Henry Monaghan, Our Perfect Constitution, NYU Law Review 56 (1981): 353 William Rehnquist, The Notion of a Living Constitution, Texas Law Review 54 (1976): 693 Earl Maltz, Rethinking Constitutional Law Raoul Berger, Government by Judiciary Raoul Berger, New Theories of Interpretation: The Activist Flight from the Constitution, Ohio St. Law J. 47 (1986): 1 Raoul Berger, The Founders Views According to Jefferson Powell, Texas Law Review 67 (1989): 1033 Raoul Berger, Original Intention in Historical Perspective, George Washington Law Review 54 (1986): 296 Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of This Constitution, Iowa Law Review 72 (1987): 1193 James A. Gardner, The Positivist Foundations of Originalism: An Account and Critique, Boston U. Law Review 71 (1991): 5 Bret Boyce, Originalism and the Fourteenth Amendment, Wake Forest Law Review 33 (1998): 909 Erwin Chemerinsky, Interpreting the Constitution Richard Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, Harvard L. Rev. 100 (1987): 1189 Robert Bennett, Objectivity in Constitutional Law, University of Pennsylvania Law Review 132 (1984): 445 Larry Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation be Justified? California Law Review 73 (1985): 1482 Paul Brest, The Misconceived Quest for Original Understanding, Boston University Law Review 60 (1980): 204 Stanley Fish Doing What Comes Naturally

10

Richard Posner, Bork and Beethoven, Stanford Law Review 42 (1990): 1380 Mark Tushnet Red, White and Blue David Lyons Moral Aspects of Legal Theory David O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, Philosophy and Public Affairs 17 (1988): 105 Joseph Raz, Intention in Interpretation, in The Autonomy of Law, ed. Robert George Samuel Freeman, Original Meaning, Democratic Interpretation, and the Constitution, Phil. & Public Affairs 21 (1992): 1 William E. Nelson, History and Neutrality in Constitutional Adjudication, Virginia Law Review 72 (1986): 1237 H. Jefferson Powell, The Original Understanding of Original Intent, Harvard Law Review 98 (1985): 885 H. Jefferson Powell, Rules for Originalists, Virginia Law Review 73 (1987): 659 Anthony Segall, A Century Lost: The End of the Originalism Debate, Constitutional Commentary 15 (1998): 411 Terrence Sandalow, Constitutional Interpretation, Michigan Law Review 79 (1981): 1087 Frederick Schauer, An Essay on Constitutional Language, UCLA Law Review 29 (1982): 797 Martin Flaherty, History Lite in Modern American Constitutionalism, Columbia Law Review 95 (1995): 523 Robin West Progressive Constitutionalism Robert Nagel Constitutional Cultures Jed Rubenfeld, Reading the Constitution as Spoken, Yale Law Journal 104 (1995): 1119 Akhil Amar, Intratextualism, Harvard Law Review 112 (1999): 747 Howard Gillman The Collapse of Constitutional Originalism and the Rise of the Notion of the Living Constitution in the Course of American State-Building, Studies in American Political Development (1997) Philip Bobbitt, Constitutional Fate Charles Black, Structure and Relationship in Constitutional Law Symposium: Interpretation, Southern California Law Review 58 (1985) Symposium: Textualism and the Constitution, George Washington Law Review 66 (1998): 1085 Symposium: Critical Legal Studies, Stanford Law Review 36 (1984): 1 Symposium: Law and Literature, Texas Law Review 60 (1982): 373 Symposium: Originalism, Democracy, and the Constitution, Harvard Journal of Law and Public Policy 19 (1996) Symposium, Constitutional Commentary 6 (1989): 19 Symposium: Philip Bobbitts Constitutional Interpretation, Texas Law Review 72 (1994): 1703 Symposium: Judicial Review and the Constitution The Text and Beyond, University of Dayton Law Review 8 (1983): 447 Symposium: Constitutional Law and the Experience of Judging, University of Colorado Law Review 61 (1990): 783 Stephen Griffin, Rebooting Originalism, University of Illinois Law Review (2008): 1185 Richard Primus, When Should Originalism Matter?, University of Michigan Law Review (2008) Mitchell Berman, Originalism is Bunk, Thomas Colby and Peter Smith, Originalisms Living Constitutionalism, John O. McGinnis and Michael Rappaport, A Pragmatic Defense of Originalism, Lawrence Solum, Semantic Originalism, Adam Samaha, Dead Hand Arguments and Constitutional Interpretation, Columbia Law Review (2008)

11

7. Judicial Supremacy v. Popular Constitutionalism (March 23) Two related debates have dominated constitutional theory over the past few decades, a debate over how activist or restrained the Court should be in exercising the power of judicial review and a debate over the proper foundations and purposes of the power of judicial review. In recent years, another strand of debate has emerged focusing on how supreme judicial interpretations of the Constitution should be and how authoritative other interpreters of the Constitution might be. The debate over judicial supremacy has both normative and empirical elements, introducing a more explicit institutional element to the debate over judicial review. Who should interpret the Constitution? Under what circumstances? Should the judiciary defer to other political actors? Does judicial review make sense in the absence of judicial supremacy? What is popular constitutionalism, and is it consistent with the modern constitutionalism of legally constrained government? Do nonjudicial actors take the Constitution seriously? How are constitutional values best defined and enforced? Required: Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, Harvard Law Rev. 110 (1997): 1359 Keith E. Whittington, Political Foundations of Judicial Supremacy, ch. 2, 4 David Pozen, Judicial Elections as Popular Constitutionalism, Columbia Law Review 110 (2010): 2047 Todd Pettys, Popular Constitutionalism and Relaxing the Dead Hand, Washington U. L. Rev. 86 (2008): 313 Suggested: Symposium on Marbury v. Madison, Constitutional Commentary 20 (2003): 205 Symposium: Marbury and Its Legacy, George Washington Law Review 72 (2003): 1 Symposium: Marbury v. Madison, Virginia Law Review 89 (2003): 1105 Symposium: Judicial Review, Blessing or Curse?, Wake Forest Law Review 38 (2003): 313 Symposium: Evaluation of Marbury v. Madison, Michigan Law Review 101 (2003): 2557 Mark Graber and Michael Perhac, eds., Marbury v. Madison: Documents and Commentary Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, Constitutional Commentary 17 (2000): 455 Barry Friedman and Steven Smith, The Sedimentary Constitution, U. of Penn Law Review 147 (1988): 1 B. Friedman, History of the Countermajoritarian Difficulty, Pt One: The Road to Jud. Sup., NYU Law Review 73 (1998): 333 B. Friedman, History of the Countermajoritarian Difficulty, Pt 2: Reconstructions Political Court, Gtown L.J. 91 (2002): 1 Barry Friedman, History of the Countermajoritarian Difficulty, Pt Three: Lesson of Lochner, NYU L Rev 76 (2001): 1383 B. Friedman The History of the Countermajoritarian Difficulty, Part Four: Laws Politics, U. of Penn. L Rev 148 (2000): 971 Barry Friedman, History of the Countermajoritarian Difficulty, Pt 5: Birth of Academic Obsession, Yale L.J. 112 (2002): 153 Barry Friedman, Dialogue and Judicial Review, Michigan Law Review 91 (1993): 577 Symposium: Congressional Power in the Shadow of the Rehnquist Court, Indiana Law Journal 78 (2003) Keith Whittington Constitutional Construction Keith Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, NC L. Rev. 80 (2002): 773 Keith Whittington, The Road Not Taken: Dred Scott, Constitutional Law, and Political Questions, JOP 63 (2001): 365 Sanford Levinson, ed. Responding to Imperfection Paul W. Kahn, Legitimacy and History Bruce Ackerman, We the People Symposium: Moments of Change: Transformations in American Constitutionalism, Yale Law Journal 108 (1999): 1917 Symposium: On Bruce Ackermans We the People, Ethics 104 (1994): 446 Symposium: On Bruce Ackermans We the People: Transformations, Constitutional Political Economy 10 (1999): 355 Michael Klarman Constitutional Fact/ Constitutional Fiction, Stanford L Rev 44 (1992): 759 James Fleming, We the Unconventional People, University of Chicago Law Review 65 (1998): 1513 James Fleming, We the Exceptional American People, Constitutional Commentary 11 (1994): 355 Michael McConnell, The Forgotten Constitutional Moment, Constitutional Commentary 11 (1994): 115 Larry Kramer Whats a Constitution for Anyway? Of History and Theory, Bruce Ackerman and the New Deal, Case Western Reserve Law Review 46 (1996): 885 Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, Columbia Law Review 100 (2000): 215 Saikrishna Prakash & John Yoo, Puzzling Persistance of Process-Based Theories of Federalism, Tex L. Rev. 79 (2001): 1459 Saikrishna Prakash & John Yoo, The Origins of Judicial Review, University of Chicago Law Review 70 (2003): 887 Mark Tushnet Living in a Constitutional Moment?: Lopez and Constitutional Theory, Case Western Reserve Law Review 46 (1996): 845

12

Mark Tushnet, Taking the Constitution Away from the Courts Symposium: Mark Tushnets Taking the Constitution Away from the Courts, Richmond Law Review 34 (2000): 359 Reva Siegel, Text in Contest: Gender & the Constitution from a Social Movement Persp., U. of Penn L Rev 150 (2001): 297 Reva Siegel, She the People: The 19th Amendment, Sex Equality, Federalism, and the Family, Harv. L Rev 115 (2002): 947 Symposium: Fidelity in Constitutional Theory, Fordham Law Review 65 (1997): 1247 Lawrence Lessig Fidelity in Translation, Texas Law Review 71 (1993): 1165 Lawrence Lessig, Translating Federalism: United States v. Lopez, Supreme Court Review 1995 Lawrence Lessig What Drives Derivability: Reponses to Responding to Imperfection, Texas Law Review 71 (1993): 839 Lawrence Lessig, Plastics: Unger and Ackerman on Transformation, Yale Law Journal 98 (1989): 1173 Michael Klarman Antifidelity, Southern California Law Review 70 (1997): 381 Lawrence Sager The Incorrigible Constitution, New York University Law Review 65 (1990): 894 Symposium: Fidelity, Economic Liberty, and 1937, William and Mary Law Review 41 (1999): 1 Barry Cushman Rethinking the New Deal Court G. Edward White, The Constitution and the New Deal Laurence Tribe Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, Harvard Law Review 108 (1995): 1292 William Brennan The Constitution of the United States: Contemporary Ratification, Texas Law Review 27 (1986): 433 William Rehnquist The Notion of a Living Constitution, Texas Law Review 54 (1976): 693 John Vile Constitutional Change in the United States Morton Horowitz The Constitution of Change: Legal Fundamentality Without Fundamentalism, Harv.L Rev 107 (1993): 32 Richard H. Fallon Jr. Implementing the Constitution, Harvard Law Review 111 (1997): 540 Neal Devins, Shaping Constitutional Values Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, Virginia Law Review 94 (1998): 83 Robert Spitzer, ed., Politics and Constitutionalism Louis Fisher, Constitutional Conflicts Between Congress and the President Louis Fisher, Religious Liberty in America: Political Safeguards John Dinan, Keeping the Peoples Liberties Susan Burgess, Contest for Constitutional Authority Jeremy Waldron, Law and Disagreement Christian Fritz, Alternative Visions of American Constitutionalism, Hastings Con Law Q. 24 (1997): 287 Scott Gant, Judicial Supremacy and Nonjudicial Interpretation of the Constitution, Hastings Con Law Q 24 (1997): 359 Bruce Peabody, Nonjudicial Const Interp. Authoritative Settlement, & New Agenda for Research, Const Comm 6 (1999): 63 Bruce Peabody, Congressional Constitutional Interpretation and the Courts, Law and Social Inquiry 29 (2004): 127 Donald Morgan, Congress and the Constitution David Currie, The Constitution in Congress Sanford Levinson, Constitutional Faith Daniel Farber, The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, U. of Illinois L Rev 1982 (1982): 387 Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, Georgetown L. J. (1994) Walter Murphy, Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter Review of Politics (1986) Dawn Johnsen, Functional Departmentalism & Nonjudicial Interp, Law & Cont. Prob. (2004) Dawn Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, Law & Cont. Problems (2000) David Barron, Constitutionalism in the Shadow of Doctrine, Law & Contemporary Problems (2000)

13

8. The Countermajoritarian Court? (March 30) As we saw, the starting point for contemporary normative theorizing about judicial review is the assumption that the Court is a countermajoritarian institution. That countermajoritarianism created both possibilities and difficulties. It created the possibility that the Court could protect minorities and individuals from majority power. It created the difficulty that judicial review was in conflict with democracy. The dramatic conflict between the Lochner Court and the New Deal exposed the central feature of American judicial review. The normative debate essentially begins with from that core empirical assumption. But through most of the nineteenth century, no one would have given credence to that assumption, and James Madison himself doubted the value of constitutional rights because he thought the popular will was the only significant political force in a republic. Is the countermajoritarian Court a myth? Can the Court be countermajoritarian? Will it want to be countermajoritarian? What would it mean to be countermajoritarian? What is the relationship of the Court to other political actors? Are the assumptions of normative theory consistent with our understandings of how politics works and how political power is accumulated and exercised? Required: Robert Dahl Decision-Making in a Democracy: The Supreme Court as National Policy-Maker, Journal of Public Law 6 (1957): 279 Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, SAPD (1993) Michael Klarman Rethinking the Civil Rights and Civil Liberties Revolutions, Virginia Law Review 82 (1996): 1 Keith Whittington, Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court, APSR 99 (2005): 583 Lawrence Baum and Neal Devins, Why the Supreme Court Cares about Elites, Not the American People, Georgetown Law Journal 98 (2010): 1515 Tom Keck, Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes? APSR 101 (2007): 321. Suggested: Lucas A. Powe, Jr. The Warren Court and the American Elite K. Whittington, To Support This Constitution: Jud. Supremacy in the 20th Century, in Marbury v. Madison, ed. M. Graber Symposium: Judicial Independence and Accountability, Southern California Law Review 72 (1999): 315 Symposium: Judicial Independence and Accountability, Law and Contemporary Problems 61 (1998): 3 Henry Abraham Justices, Presidents, and Senators David Yalof Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees Gerald Rosenberg Judicial Independence and the Reality of Political Power, Review of Politics 54 (1992): 369 William Mishler & Reginald Sheehan Public Opinion, Attitudinal Model, & Sup. Ct Decision-Making, JOP58 (1996): 169 William Mishler & Reginald Sheehan, The Supreme Court as a Countermajoritarian Institution?, APSR 87 (1993): 87 Controversy: Popular Influence on Supreme Court Decisions, American Political Science Review 88 (1994): 711 James Stimson, et al, Dynamic Representation, APSR 89 (1995): 543 D. Barnum, The S. C. & Public Opinion: Judicial Decision Making in the Post-New Deal Period, JOP 47 (1985): 652 Jonathan Casper The Supreme Court and National Policy Making, American Political Science Review 70 (1976): 50 David Adamany, Legitimacy, Realigning Elections, and the Supreme Court, Wisconsin L. Rev. (1973) 790 John Gates The Supreme Court and Partisan Realignment Walter Murphy Congress and the Court Thomas Marshall Public Opinion and the Supreme Court Robert McCloskey The American Supreme Court Louis Fisher Constitutional Dialogues: Interpretation as Political Process Barry Friedman Dialogue and Judicial Review, Michigan Law Review 577 (1993): 91 Barry Friedman The History of the Countermajoritarian Difficulty, Part One, NYU Law Review 73 (1998): 333 Michael Klarman, From Jim Crow to Civil Rights Steven Winter An Upside/Down View of the Countermajoritarian Difficulty, Texas Law Review 69 (1991): 1881 Girardeau Spann Race Against the Court L. Michael Siedman Ambivalence and Accountability, Southern California Law Review 61 (1988) 1571 David Garrow Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade Mark Ramseyer, The Puzzling Independence of Courts: A Comparative Approach, Journal of Legal Studies 23 (1994): 721 William Landes & Richard Posner, The Independent Judiciary in an Interest-Group Persp., J. of Law & Econ. 18 (1975): 875

14

9. Constructing Judicial Review (April 6) Landes-Posner helped put the question of how independent judiciaries are created and sustained on the agenda for empirical social science. Placing the problem of judicial independence within a larger framework of interest group efforts to buy legislation, Landes-Posner suggested that private actors and through them legislators might value independent judges who could help provide some assurance of temporal stability for legislative bargains (which in turn made those bargains legislation more valuable). There are a number of puzzles about the Landes-Posner model (why, for example, would judges be interested in enforcing past legislative bargains, and why would current legislators want them to do so?), but it emphasized that a political explanation was needed for an independent judiciary and suggested that such an explanation might be found in the varying incentives and time horizons of courts, legislators and private actors. Subsequent models have tended to emphasize either internal or external factors supporting judicial independence. Internal models focus on the incentives of elite political actors that lead them to desire an independent judiciary (the Landes-Posner model is an example). External models focus on external constraints on political actors that prevent them from subverting an independent judiciary (e.g., mass public opinion that supports the judiciary). Do political models of judicial independence capture what we mean by judicial independence? What do we mean by judicial independence? How do we observe it? Are internal and external models incompatible? What do judges do these models? Required: Mark Ramseyer, The Puzzling Independence of Courts: A Comparative Approach, Journal of Legal Studies 23 (1994): 721 Matthew Stephenson, When the Devil Turns . . . : Political Foundations of Independent Judicial Review, J. of Legal Studies 32 (2003): 59 Thomas Ginsburg, Judicial Review in New Democracies, ch. 1-2 Keith Whittington, Political Foundations of Judicial Supremacy, ch. 5 Suggested: William Landes & Richard Posner, The Independent Judiciary in an Interest-Group Persp., J. of Law & Econ. 18 (1975): 875 John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Calf. L. Rev. 353 (1999). Rafael Gely and Pablo Spiller, The Political Economy of Supreme Court Constitutional Decisions: The Case of Roosevelts Court-Packing Plan, 12 Internatl. Rev. of L. and Econ. 45 (1992) Robert Lowry Clinton, Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison, 38 Am. J. of Pol. Sci. 285 (1994) LEE EPSTEIN AND JACK KNIGHT, THE CHOICES JUSTICES MAKE 139-145 (CQ Press 1998) James R. Rogers, Information and Judicial Review: A Signaling Game of Legislative-Judicial Interaction, 45 AJPS 84 (2001) Georg Vanberg, Legislative-Judicial Relations: A Game Theoretic Approach to Constitutional Review, 45 AJPS 346 (2001) Georg Vanberg, Establishing Judicial Independence in West Germany: The Impact of Opinion Leadership and the Separation of Powers, 32 Comp. Pol. 333 (2000) Donald J. Bourdreaux and A.C. Pritchard, Reassessing the Role of the Independent Judiciary in Enforcing Interest-Group Bargains, 5 Const. Pol. Econ. 1 (1994) Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary, 13 Internatl. Rev. of L. and Econ. 349 (1993) Robert D. Cooter and Tom Ginsburg, Comparative Judicial Discretion: An Empirical Test of Economic Models, 16 Internatl. Rev. of L. and Econ. 295 (1996) Ran Hirschl, Toward Juristocracy Leslie Friedman Goldstein, State Resistance to Authority in Federal Unions: The Early United States (1790-1860) and the European Community (1958-1994), 11 St. in Am. Pol. Dev. 149 (1997) James L. Gibson, Gregory A. Caldeira, and Vanessa Baird, On the Legitimacy of National High Courts, 92 APSR 343 (1998) Gregory A. Caldeira, Public Opinion and the U.S. Supreme Court: FDRs Court-Packing Plan, 81 APSR 1139 (1987) Mondak & Smithey, Dynamics of Public Support for the Court, JOP 59 (1997) Keith Whittington, Legislative Sanctions & the Strategic Environment of Judicial Review, International J. of Con. L. (2003) Clifford Carruba, Courts and Compliance in International Regulatory Regimes, Journal of Politics (2005) Jeffrey Staton, Constitutional Review and Selective Promotion of Case Results, AJPS (2006) Mark Graber, Constructing Judicial Review, Annual Review of Political Science (2005) Georg Vanberg, Establishing and Maintaining Judicial Independence, The Oxford Handbook of Law and Politics Frank Cross, Judicial Independence, The Oxford Handbook of Law and Politics

15

10. Entrenchment and Judicialization (April 13) Judicial review may be understood as a mechanism by which powerful political actors entrench their interests against future displacement. The Constitution itself may be understood as an entrenchment device, identifying certain commitments as particularly important and handicapping future political actors who may want to violate those commitments. The entrenchment logic may help explain both the political supports for judicial review and the substantive content of the constitutional decisions that courts render. How does Court fit within the political system? How does it advance, resist or complicate the goals of the dominant political coalition? What make a commitment stick? Under what conditions are efforts at entrenchment successful? Does this approach make judicial review more or less normatively attractive? We might distinguish between two somewhat separate dynamics the entrenchment of currently preferred policy against easy displacement by future political actors, and the judicialization of political disputes by shifting issues from the legislative and electoral arena into the judicial arena for resolution. Required: Ran Hirschl, Political Origins of Judicial Empowerment through Constitutionalization, Law & Social Inquiry 25 (2000): 91 Howard Gillman How Political Parties Use the Courts to Advance their Agendas, APSR 96 (2002): 511 Keith E. Whittington, Political Foundations of Judicial Supremacy, ch. 3 Daryl Levinson, Parchment and Politics, Harvard Law Review 124 (2011): 657 Suggested: Jon Elster Ulysses and the Sirens Jon Elster Ulysses Unbound Thomas Schelling Enforcing Rules on Oneself Journal of Law, Economics, and Organization (1985) Michael Seidman Ambivalence and Accountability Southern California Law Review (1988) Samuel Freeman Constitutional Democracy and the Legitimacy of Judicial Review, Law and Philosophy 9 (1990) Stephen Holmes Passions and Constraints Douglass North Institutions and Credible Commitment, Journal of Institutional and Theoretical Economics (1993) D. North & B. Weingast Constitutions & Commitment, Journal of Economic History (1989) Stefan Voigt Explaining Constitutional Change Peter C. Ordeshook, Constitutional Stability, Constitutional Political Economy (1992) Cornell Clayton and David May, The New Institutionalism and Supreme Court Decision-making, Polity 32 (2000): 233 Cornell Clayton and Mitchell Pickerill, The Rehnquist Court and the Political Dynamics of Federalism, POP 2 (2004): 233 Ronald Kahn and Ken Kersch, eds., The Supreme Court and American Political Development Keith Whittington, Taking What They Give Us: Explaining the Courts Federalism Offensive, Duke L. J. 51 (2001): 477 Keith Whittington, Legislative Sanctions and the Strategic Environment of Judicial Review, Inter. J. of Con. L. 1 (2003): 446 K. Whittington, To Support This Constitution: Jud. Supremacy in the 20th Century, in Marbury v. Madison, ed. M. Graber Deborah Barrow, et al., The Federal Judiciary and Institutional Change Mark Tushnet, The New Constitutional Order John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, S. Calf. L. Rev. 72 (1999): 353 Alex Cuikerman, Central Bank Strategy, Credibility and Independence Mark Crain & Robert Tollison, The Exec. Branch in the Interest-Group Theory of Government, J. of Legal St. 8 (1979): 555 Eli Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, Inter. Rev. of Law & Econ. 13 (1993): 349 Matthew Stephenson, When the Devil Turns . . . J. of Legal St. 32 (2003): 59 Mark Ramseyer, The Puzzling Independence of Courts: A Comparative Approach, J. of Legal St. 23 (1994): 721 Tom Ginsburg, Judicial Review in New Democracies Tamir Moustafa, The Judicialization of Politics in Egypt, Law and Social Inquiry 28 (2003): 883 Eli Salzberger and Stefan Voigt, On the Delegation of Powers, Constitutional Political Economy 13 (2002): 25 Kevin McMahon, Reconsidering Roosevelt on Race Martin Shapiro and Alec Stone Sweet, eds., On Law, Politics, and Judicialization Dawn Johnsen, Ronald Reagan and the Rehnquist Court on Congressional Power, Indiana Law Journal 78 (2003): 363 Mark Graber, Naked Land Transfers and American Constitutional Development, Vanderbilt Law Review 53 (2000): 73 Mark Graber, The Jacksonian Origins of Chase Court Activism, Journal of Supreme Court History (2000) Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, IO 54 (2000): 217

16

11. Dialogues and Constraints (April 20) Rather than a bolt from the blue, the exercise of judicial review and constitutional interpretation by the courts might be understood as part of a process that includes other actors and institutions. The Court has an ongoing relationship with the other branches of government, and it may be in dialogue with them in both a strategic sense and a deliberative sense. How does the Court and Congress relate to one another? The Court and the executive branch? What is the Courts role in the constitutional dialogue? What are the limits of judicial action? What are the spurs to judicial action? What responses to judicial decisions are available to elected officials? Are judicial and non-judicial actors speaking the same language? What is the value of judicial review to political actors? How is constitutional law shaped by its historic and political context? Can a strategic Court be consistent with our normative theories of judicial review and constitutionalism? Can a strategic Court be justified? Should the Court take into account strategic considerations in deciding constitutional cases? Required: Georg Vanberg, Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review, AJPS 45 (2001): 346 James Rogers, Information & Judicial Review: A Signaling Model of Legislative & Judicial Interaction, AJPS 45 (2001): 84 Barry Friedman and Anna Harvey, Pulling Punches: Legislative Constraints on the Supreme Court LSQ (2006) Tom S. Clark, The Limits of Judicial Independence, ch. 2, 4-6 Suggested: George Lovell, Legislative Deferrals Mark Graber, Federalist or Friend of Adams: The Marshall Court and Party Politics, Studies in APD 12 (1998): 209 Robert McCloskey The American Supreme Court John B. Taylor, The Sup. Ct & Political Eras: A Perspective on Jud. Power in a Democratic Polity, Review of Politics (1992) Stuart S. Nagel, Court-Curbing Periods in American History, Vanderbilt Law Review (1965) William Lasser The Limits of Judicial Power Jack Knight and Lee Epstein On the Struggle for Judicial Supremacy, Law and Society Review (1996) William Eskridge and Philip Fricky Law as Equilibrium, Harvard Law Review 110 (1994): 1 Jeffrey Segal Sup. Ct Deference to Congress: An Examination of the Marksist Model, in Supreme Court Decision-Making Nolan McCarty & Rose Razaghian, Advice & Consent: Sen. Responses to Exec. Branch Nominations, AJPS 43 (1999): 1122 Jeffrey Segal, Charles Cameron and Albert Cover, A Spatial Model of Roll-Call Voting, AJPS 36 (1992): 96 C. Shipan and M. Shannon, Delaying Jusice(s): A Duration Analysis of Supreme Ct Confirmations, AJPS 47 (2003): 654 Geoffrey Garrett, R. Daniel Keleman, and Heiner Schulz, The European Court of Justice, National Governments, and Legal Integration in the European Union, International Organization 52 (1998): 149 Walter Mattli and Anne-Marie Slaughter, Revisiting the European Court of Justice, International Org. 52 (1998): 177 Karen Alter, The European Courts Political Power, West European Politics 19 (1996): 458 Lee Epstein and Jack Knight The Choices Justices Make Walter Murphy Elements of Judicial Strategy William Eskridge The Judicial Review Game, Northwestern University Law Review 88 (1993): 382 William Riker and Barry Weingast Constitutional Regulation of Legislative Choice, Virginia Law Review 74 (1988): 373 W. Eskridge & J. Ferejohn Virtual Logrolling: How Courts, Congress & States Multiply Rts, S. Cal. L Rev. 68 (1995): 1545 James Meernick and Joseph Ignagni Judicial Review and Coordinate Construction of the Constitution, AJPS 41 (1997): 447 Mark Ramseyer, The Puzzling Independence of Courts: A Comparative Approach, Journal of Legal Studies 23 (1994): 721 William Landes & Richard Posner, The Independent Judiciary in an Interest-Group Persp., J. of Law & Econ. 18 (1975): 875 Cornell Clayton and Howard Gillman, eds., Supreme Court Decision-Making Howard Gillman and Cornell Clayton, eds., The Supreme Court in American Politics Rogers Smith Political Jurisprudence, the New Institutionalism, and the Future of Public Law, APSR 82 (1988): 89 Rogers Smith If Politics Matters: Implications for a New Institutionalism, Studies in APD 6 (1992): 1 Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, Rutgers L.J. 30 (1999): 871 Peter Hogg and A. Bushell, The Charter Dialogue between Courts and Legislatures, Osgoode Hall L.J. (1997) Christopher Manfredi and J.B. Kelly, Six Degrees of Dialogue, Osgoode Hall L. J. (1999) Richard Bauman & Tsvi Kahana, The Least Examined Branch James Rogers, Roy Flemming and Jon Bond, Institutional Games and the U.S. Supreme Court

17

12. Litigation and Impact (April 27) Prior to the twentieth century, the Supreme Courts appellate jurisdiction was mandatory. The Court had to hear any case meeting certain criteria. In the twentieth century, the Court has been given discretionary jurisdiction, leaving it up to the justices to decide which cases to accept for decision. In either case, the justices only have control over the case for a short time. The Court cannot determine what cases are brought to it, and they must ultimately rely on others to implement their decisions. Although normative theories of judicial review often portray the Court as a lone and omnipotent crusader, the justices actually operate within their own extended institutional environment. How does this context affect judicial power? How might it affect how the power of judicial review is exercised? Does the litigation environment affect our view of judicial independence? Does the litigation context matter to judicial decision-making? Does it affect outcomes? How should it be integrated into theories of judicial policy-making, such as the attitudinal model? How powerful is the Court? What can it accomplish? How should this context be integrated into our normative theories of judicial review? Should the Court worry about the impact of its rulings? What might the regime development perspective say about Rosenbergs analysis of desegregation? Required: Gerald Rosenberg The Hollow Hope ch. 1-2 Paul Frymer Acting when Elected Officials Wont, APSR (2003) Valerie Hoekstra, Competing Constraints: State Court Responses to Supreme Court Decisions PRQ (2005) Clifford Carrubba and Georg Vanberg, The Value of Vaguesness AJPS (2008) Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights, L&SR (2009) Suggested: Charles Epp The Rights Revolution Michael McCann Rights at Work Michael McCann Taking Reform Seriously David Schultz, ed. Leveraging the Law Stuart Scheingold The Politics of Rights Valerie Hoekstra and Jeffrey Segal, The Shepherding of Local Public Opinion: The Supreme Court and Lambs Chapel, Journal of Politics 58 (1996): 1079 Erskine and Siegel, Civil Liberties and the American Public, J. of Social Issues 31 (1975): 13 Michael Combs, The Supreme Court as a National Policy-Maker: A Historical and Legal Analysis of School Desegregation, Southern U. Law Review 8 (1982): 197 Robert Glennon, The Role of Law in the Civil Rights Movement, Law and History Review 9 (1991): 59 Donald Horowitz The Courts and Social Policy Phillip Cooper Hard Judicial Choices: Federal District Judges and State and Local Officials Jack Peltason 58 Lonely Men Theodore Becker and Malcolm Feeley, The Impact of Supreme Court Decisions Bradley Canon and Charles Johnson, Judicial Policies: Implementation and Impact Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State Douglas Reed, Twenty-Five Years after Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, Law and Society Review 32 (1998): 175 Lee Epstein and Joseph Kobylka, The Supreme Court and Legal Change Kevin McGuire and Gregory Caldeira, Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court, APSR 87 (1993): 717 Kenneth Dolbeare and Phillip Hammond The School Prayer Decisions: From Court Policy to Local Practice Kevin McGuire, Explaining Executive Success in the Supreme Court, Political Research Quarterly 51 (1998): 505 Kevin McGuire The Supreme Court Bar: Legal Elites in the Washington Community Susan Gluck Mezey Pitiful Plaintiffs: Child Welfare Litigation and the Federal Courts Michael Klarman Has Brown Changed Race Relations? The Backlash Thesis, Journal of American History 81 (1994): 81 Symposium: Twentieth-Century Constitutional History, Virginia Law Review 80 (1994): 1 Stuart Schiengold Constitutional Rights and Social Change: Civil Rights in Perspective, in Judging the Constitution: Critical Essays on Judicial Lawmaking ed. Michael McCann and Gerald Houseman Jerold Auerbach Unequal Justice: Lawyers and Social Change in Modern America

18

Kristin Bumiller The Civil Rights Society: The Social Construction of Victims H.W. Perry Deciding to Decide: Agenda Setting in the United States Supreme Court Gerald Rosenberg The Real World of Constitutional Rights: The Supreme Court and the Implementation of the Abortion Decisions, in Contemplating Courts ed. Lee Epstein Gerald Rosenberg, Positivism, Interpretivism, and the Study of Law, Law and Social Inquiry 21 (1996): 435 Michael McCann Causal versus Constitutive Explanations (or, On the Difficulty of Being So Positive . . . ), Law and Social Inquiry 21 (1996): 457 Symposium: The Supreme Court and Social Change, Law and Social Inquiry 17 (1992): 715 William Lasser The Limits of Judicial Power: The Supreme Court in American Politics Edward Purcell Jr. Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958 David OBrien Storm Center: The Supreme Court in American Politics Thomas Marshall Policymaking and the Modern Court: When Do Supreme Court Rulings Prevail? Western Political Quarterly 42 (1989): 493 Lee Epstein, Jeffrey Segal and Timothy Johnson The Claim of Issue Creation on the U.S. Supreme Court, American Political Science Review 90 (1996): 845 Gregory Caldeira & John Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, APSR 82 (1988): 1109 Jesse Choper On the Difference in Importance Between Supreme Court Doctrine and Actual Consequences, Cardoza Law Review 19 (1998): 2259. Susan Lawrence The Poor in Court: The Legal Services Program and Supreme Court Decisions Symposium: Litigation and Dispute Resolution, Law and Society Review 15 (1981): 401 Clement Vose Caucasions Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases Mark Tushnet The NAACPs Legal Strategy against Segregated Education, 1925-1950 Susan Sterett Creating Constitutionalism? The Politics of Legal Expertise and Administrative law in England and Wales Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Social Change, Law and Society Review 9 (1974): 1974 Marc Galanter, Reading the Landscape of Disputes: What We Know and Dont Know (and Think We Know) about Our Allegedly Contentious and Litigious Society, UCLA Law Review 31 (1983): 4 Marc Galanter, The Radiating Effects of Courts, in Empirical Theories about Courts, eds. Keith Boyum and Lynn Mather Stanton Wheeler, et al., Do the Haves Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970, Law and Society Review 21 (1987): 403 Joel Grossman, et al., Dimensions of Institutional Participation: Who Uses the Courts and How? JOP 44 (1982) Reginald Sheehan, et al. Ideology, Status and the Differential Success of Direct Parties before the Supreme Court, APSR 86 (1992): 464 Stephen Wasby The Impact of the United States Supreme Court Charles Johnson, Lower Court Reactions to Supreme Court Decisions: A Quantitative Examination, AJPS 23 (1979): 792 Kevin R. den Dulk and J. Mitchell Pickerill, Bridging the Lawmaking Process: Organized Interests, Court-Congress Interaction, and Church-State Relations, Polity 35 (2003): 419 Gregg Ivers, To Build a Wall Lee Epstein, Conservatives in Court Frank Sorauf, The Wall of Separation David Manwaring, Render Unto Caesar Shawn Francis Peters, Judging Jehovahs Witnesses Michael McCann, Litigation and the Mobilization of Law, in Oxford Handbook of Law and Politics (2008) Charles Epp, Law as an Instrument of Social Reform, in Oxford Handbook of Law and Politics (2008) Flemming, et al., One Voice Among Many, AJPS 41 (1997): 1224 Songer, Alternative Approaches to the Study of Judicial Impact, APQ 16 (1988): 425 Bowen, Attorney Advertising in the Wake of Bates, APQ 23 (1995): 461 Bond and Johnson, Implementing a Permissive Policy, AJPS 26 (1982): 1 Hansen, State Implementation of Supreme Court Decisions, JOP 42 (1980): 372 Meier, The Impact of State-Level Restrictions on Abortion, Demography 33 (1996): 307 Hansford, Information Provision, Organizational Constraints, PRQ 57 (2004): 219 Zorn, U.S. Government Litigation Strategies in the Federal Appellate Courts, PRQ 55 (2002): 145 Helena Silverstein, Girls on the Stand

19