The Supreme Court of the United States

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Today, the United States Supreme Court is the object of great political controversy. Three times in the past, it is has struggled against the political branches: 1) At its start, when President Thomas Jefferson tried to control it, 2) just before the American Civil War, when President Abraham Lincoln tried to limit it, and 3) during the Great Depression, when President Franklin Roosevelt tried to change it.

Throughout the decades, however, the Supreme Court has maintained its authority and power, and its ability to change American life and even the Constitution. We shall study how this unique institution has been able to succeed despite the opposition of the other branches of government. We shall see how it has been able to limit the political branches, create new “rights,” and define how far freedom of speech and of the press may be protected.

The students and the Professor will study some of the major cases and controversies that have surrounded the Supreme Court. Materials will be provided with cases summarized or edited.

Professor David F. Forte is a nationally known expert in American Constitutional Law, has authored many briefs before the United States Supreme Court, has conducted seminars for federal judges, testified on numerous occasions before Congress, and has written and spoken widely on the American Supreme Court at major universities in the United States, Europe, and the Middle East.

Session 1

Reading: The Declaration of Independence (1776)

The Constitution of the United States (1789)

Lecture: Law, Constitution, and Empire

Seminar: Law in the Declaration and in the Constitution

Session 2

Reading: Federalist Numbers 10, 51, 78 (1787-88)

Anti-Federalist 10 (1788)

Lecture: The idea of dynamic federalism

Seminar: Separation of Powers

Session 3

Reading: Marbury v. Madison (1803)

Lecture: The Struggle for Judicial Independence

Seminar: Judicial review of legislation: analysis of Marbury v. Madison

Session 4

Reading: McCulloch v. Maryland (1819)

Lecture: The states and the federal government at odds

Seminar: The extent and the limits of federal supremacy: Analysis of McCulloch v. Maryland

Session 5

Reading: Gibbons v Ogden (1824), United States v. E.C. Knight (1895),

Lecture: The nature of commerce and its control

Seminar: Divided sovereignty: Analysis of assigned cases

Session 6

Reading: Wickard v. Filburn (1942), United States v. Lopez (1995)

Lecture: The growth of federal power over the economy

Seminar: Search for limits on federal power: analysis of assigned cases

Session 7

Reading: Bailey v. Drexel Furniture Co. (1922), South Dakota v. Dole (1987),

National Federation of Independent Businesses v. Sebelius (2012)

Lecture: The federal government’s power to tax and to spend

Seminar: Chief Justice Roberts and the new limits on federal power: analysis of assigned cases.

Session 8

Reading: Calder v. Bull (1798), Lochner v. New York (1905), West Coast Hotel v. Parrish (1937)

Lecture: The problem of unenumerated rights in the Constitution

Seminar: Case analysis: Due Process and the Right to Contract

Session 9

Readings: Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896)

Lecture: Race and the Constitution

Seminar: Case analysis: The nature of equality

Session 10: Brown v. Board of Education (1954), Adarand Constructors v. Peña (1995)

Lecture: The question of race preferences in the law

Seminar: Case analysis: Seeking a solution in the law to the question of biological differences.

Session 11

Readings: Hawaii v. Midkiff (1984), Kelo v. New London (2005)

Lecture: Property rights under the Constitution

Seminar: Case analysis: The limits of the regulation of private property

Session 12

Readings: Roe v. Wade (1973), Planned Parenthood of Southeastern Pa. v. Casey (1992), Gonzales v. Carhart (2007), Obergefell v. Hodges (2015)

Lecture: The social restructuring of the United Sates

Seminar: Case analysis: Sexuality and the role of the Supreme Court

Session 13

Readings: New York Times v. Sullivan (1964), United States v. Alvarez (2012)

Lecture: The Court and Freedom of Speech

Seminar: Discussion: Civil society and free expression

Session 14:

Readings: James Madison, Remonstrance (1785), George Washington, Thanksgiving Proclamation (1789), Everson v. Bd. of Education (1947), Employment Division v. Smith (1990)

Lecture: State and Religion in the United States

Seminar: Discussion: Freedom of Religion

Session 15

Lecture and discussion: The role of the Supreme Court in the government of the United States

Seminar: Final examination