Constitutional Law and the Supreme Court

Units

1. 1

   Judicial review

   3 lessons

   1. Marbury v. MadisonExplain how the transition of 1801 produced Marbury v. Madison (1803), follow Marshall's three questions to the holding, and state the reasoning that makes an unconstitutional law void.
   2. The countermajoritarian difficulty and interpretationState Hamilton's defence of judicial review in Federalist 78 and Bickel's countermajoritarian difficulty, and compare originalism, the living constitution and the other methods judges use to read the text.
   3. How cases reach the CourtTrace the routes a case takes to the Supreme Court, explain certiorari and the rule of four, and read the funnel from thousands of petitions to about sixty argued cases, with the shadow docket beside it.
2. 2

   Federalism and the commerce power

   3 lessons

   1. McCulloch and the nation's powersExplain why Maryland taxed the Second Bank of the United States, state Marshall's holdings in McCulloch v. Maryland (1819) on implied powers and state immunity, and state Gibbons v. Ogden (1824) on commerce.
   2. The commerce power, 1905 to 2012Trace the Court's reading of the commerce power from Lochner and the pre-1937 limits, through the New Deal shift and Wickard, to Lopez and NFIB v. Sebelius, and state the tests the Court uses.
   3. States and the national governmentExplain the Tenth Amendment, the anti-commandeering rule of New York v. United States (1992) and Printz (1997), and the spending power of South Dakota v. Dole (1987) with its limits.
3. 3

   Separation of powers

   3 lessons

   1. Youngstown and presidential powerNarrate the steel seizure of 1952, state the holding of Youngstown Sheet and Tube Co. v. Sawyer, and apply Justice Jackson's three zones of presidential power to later cases.
   2. Executive privilegeFollow the Watergate tapes from their discovery to United States v. Nixon (1974), state what the Court held about executive privilege, and place later cases on a timeline of presidential confidentiality.
   3. Delegation, the legislative veto and removalState the intelligible principle test for delegation and why Schechter struck a law, explain INS v. Chadha's rule that Congress cannot veto outside the lawmaking process, and trace the president's removal power from Myers to Seila Law.
4. 4

   Equal protection and race

   3 lessons

   1. From Plessy to BrownTrace the doctrine of separate but equal from Plessy v. Ferguson (1896) through the NAACP's litigation to Brown v. Board of Education (1954), state Brown's reasoning, and read the pace of school desegregation after it.
   2. Levels of scrutinyState the three tiers of review under the equal protection clause, rational basis, intermediate and strict scrutiny, trace them to Carolene Products footnote four, classify laws by tier, and assess Korematsu as the cautionary case.
   3. Affirmative actionTrace the Court's treatment of race-conscious admissions from Bakke (1978) through Grutter (2003) to Students for Fair Admissions v. Harvard (2023), and show how the permitted rationales narrowed from remedy to diversity to none.
5. 5

   Free speech

   3 lessons

   1. Dangerous speechTrace the First Amendment test for dangerous speech from Schenck's clear and present danger (1919) through Dennis (1951) to Brandenburg's imminent lawless action test (1969), and apply Brandenburg.
   2. Content-based rules and public forumsExplain why content-based speech restrictions get strict scrutiny, apply it to Texas v. Johnson (1989) and R.A.V. v. St. Paul (1992), state the time, place and manner test, and classify public forums.
   3. Press, defamation and prior restraintExplain New York Times v. Sullivan (1964) and the actual malice rule, state the burden of proof for different plaintiffs, and describe the ban on prior restraint through Near and the Pentagon Papers case (1971).
6. 6

   Religion and the Constitution

   3 lessons

   1. The establishment clauseFollow the Court's tests under the establishment clause from Everson (1947) through Engel v. Vitale (1962) and the Lemon test of 1971 to its abandonment in Kennedy v. Bremerton School District (2022), and state the competing approaches.
   2. Free exerciseTrace the free exercise doctrine from Reynolds (1879) to Sherbert (1963), Employment Division v. Smith (1990) and the Religious Freedom Restoration Act of 1993, and apply the tests to cases.
   3. Funding and religious schoolsTrace the Court's decisions on public money and religious schools from Zelman (2002) through Locke v. Davey (2004), Trinity Lutheran (2017) and Espinoza (2020) to Carson v. Makin (2022), and state the shift from neutrality in aid to a ban on excluding religious schools.
7. 7

   Privacy, due process and the rights of the accused

   3 lessons

   1. From Griswold to DobbsExplain substantive due process and the right of privacy from Griswold (1965) through Roe (1973), Casey (1992) and Dobbs (2022), with Lawrence (2003) and Obergefell (2015), and state how Dobbs changed the test for unenumerated rights.
   2. The due process revolutionExplain selective incorporation of the Bill of Rights against the states from Gitlow (1925) to Duncan (1968), and state the holdings of Mapp (1961), Gideon (1963) and Miranda (1966), with the rights incorporated.
   3. Searches and technologyTrace the Fourth Amendment from Olmstead (1928) and Katz (1967) to Carpenter (2018), explain the reasonable expectation of privacy test and the third-party doctrine, and apply them to new technology.
8. 8

   Judicial politics

   3 lessons

   1. The attitudinal modelState Segal and Spaeth's attitudinal model that justices vote their policy preferences, read ideal points on a left-right line, and weigh the legal model and the evidence for and against each.
   2. Appointments and confirmationDescribe the nomination and confirmation of justices, read the Senate votes from Scalia to Barrett, and explain the Bork rejection of 1987, Thomas in 1991, Garland in 2016 and Barrett in 2020 as steps in rising conflict.
   3. Strategic behavior and legitimacyExplain Roosevelt's court-packing plan of 1937 and the switch in time, state the strategic model of judicial decision, and read public confidence in the Court from 1990 to 2023 as a measure of legitimacy.