Bitter Confirmation Hearings and the Supreme Court Justice's Role in Constitutional Interpretation

Hard as it may be to believe, a unanimous Senate confirmed President Reagan’s nomination of Antonin Scalia to the Supreme Court in 1986. Today’s titanic confirmation clashes, and their attendant risks to judicial legitimacy, owe in large measure to a breakdown in the longstanding, shared expectation of what role the Supreme Court plays in answering constitutional questions. On that older understanding, the Justices were neutral umpires who objectively interpreted the Constitution. To many people today, constitutional outcomes substantially depend upon who happens to be on the Court. If so, bitter confirmation clashes are unsurprising.

What does the breakdown of judicial neutrality portend for the future of the Supreme Court?  Can we revive the old neutrality paradigm?  Should we?  If not, what’s the alternative?   Does abandoning neutrality inevitably leave us with a political Court in which Justices legislate from the bench?

To answer these questions, we will study originalism and living constitutionalism, today’s two main competing approaches to constitutional interpretation.  We also will try our hand at developing an alternative approach that may better help us understand the Court’s appropriate role.  We will read a good number of cases, but most of the assigned materials will be book chapters and articles from law reviews and from other disciplines, including history, philosophy, and political theory.  Students must already have taken Constitutional Law, but need not have any background training in any other discipline.  In addition to weekly participation in the seminar, students will be expected to submit a one-page comment for each week’s assigned readings and a 15-page paper due at the end of the semester. 

(added 11/18)

Course Information
Course #: LAW 945
Program: JD
Course Type: JD Seminar
Area of Study: Constitutional Law
Credit Hours: Two credit hours.