HONR 258J Supreme Law: The Constitution, Morality, and the Courts
(Fall 2010)
Prof. Susan Dwyer
Skinner 1110B
301-405-7867
dwyer@umd.edu
M,W: 11:00AM-12:15PM
PLS 1111
M, 4:00PM-5:30PM, by appt M-W.
Outline
Physician-Assisted Suicide. Abortion. Gun Control. The Death Penalty. Free Speech.
People from very different backgrounds and with highly variable political and
religious commitments care deeply about these issues, and they seem to care about
them whether or not they themselves want to have an abortion, receive assistance
in dying, own a gun, want to publish a book, or whether someone close to them has
been murdered or is on death row. People care so much about abortion, for
example, that they cast their votes merely on the basis of what they believe about a
politician’s view on intentionally ending a pregnancy in some way other than by live
birth. Similarly, when a person is nominated to serve on the Supreme Court, a great
deal of public attention is focused on the history of his or her judicial opinions
concerning abortion. This is what has lead to the introduction of the term “litmus
test” into judicial confirmation hearings.
The Bill of Rights does not explicitly mention a right to abortion, or a right to receive
assistance in dying. The Second Amendment does explicitly mention “the right of the
people to keep and bear arms,” but the Supreme Court’s reading of that Amendment
has very recently changed quite radically. The Eighth Amendment’s “cruel and
unusual punishment” clause is notoriously controversial, and there is ongoing
debate about the scope of protections offered by the First Amendment. On what
grounds to the nine Justices of the Supreme Court make their decisions? How do
they, and how ought they interpret the text of the U.S. Constitution? To what extent
do morality, public opinion, ideological commitments and scientific advances affect
how cases are presented to the Court and how they are decided? Is there a tension
between the “will of the people” and the practices of the Supreme Court?
These are the large questions that frame this seminar, and they are far from
abstract. The cases before the Court are real cases involving real people. They have
consequences for all of us.
Our aim in this seminar is to get clearer on how, as a matter of fact, extra-legal
views and values influence judicial reasoning at the level of the Supreme
Court. We will also critically consider whether that influence is legitimate and
whether it ought to be more or less powerful than it is and has been
historically.
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Textbooks
Ely, John Hart. (1980). Democracy and Distrust. A Theory of Constitutional
Interpretation (Cambridge, MA: Harvard University Press).
Van Camp, Julie. (2006). Ethical Issues in the Courts 2nd ed. (Belmont, CA: Thomson
Wadsworth).
The rest of the readings are available through the Course Web Site on ELMS. Click on
“Course Tools,” scroll down to “Course Reserves,” click there, and the list of the
semester’s readings will be revealed.
Items on the Syllabus that appear in italics, e.g., Gregg v. Georgia, refer to Supreme
Court cases. Van Camp’s book contains very short extracts of some of the cases we
shall discuss. However, a thorough understanding of the issues typically requires at
least one scan of the complete set of opinions. While I shall not expect you to have
read all the decisions we consider in their entirety, I do strongly recommend close
study of those cases that pertain to your presentations.
There are several very easy ways to access Supreme Court opinions:
1. LexisNexis Academic: From the Library’s Home Page, click on Research Port.
Enter lexisnexis in the space for the name of a Database. Click on LexisNexis
Academic. Click on the Legal tab (top LHS), then click on Federal and State
Cases. You will then be able to enter the case name to retrieve the case in
question. LexisNexis, as you will find, also allows you to access any other case or
Law Review article that references the target case. Be careful about this,
however; there are literally hundreds of articles in print about the topics we will
be discussing. Don’t become overwhelmed. Note: LexisNexisAcademic also
allows you to search U.S. and International news publications of various kinds;
click on the News tab (top LHS).
2. http://www.law.cornell.edu/supct/ is the URL for Cornell University Law
School’s Legal Information Institute. Click on Supreme Court to get to the page
most useful for this class.
3. http://www.oyez.org/ takes you to Oyez: U.S. Supreme Court Media. This is a
very easy site to navigate, and for many cases, provides audio access to the
actual arguments as they occurred before the Court.
As you conduct research on the Web, do be careful to make a note of all relevant
URLs and the date on which you accessed the associated sites. Also make sure that
your Web sources are credible. A one-woman Blog from Silver Spring may be more
enjoyable to read than a report from the Bureau of Justice Statistics, but err on the
side of the reliable (if boring). If you are in any doubt about the credibility of a
particular source, ask me for advice.
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The complete bibliographical information for the readings and Supreme Court cases
is provided in the course Bibliography, available on ELMS under “Course
Documents”. Please consult this Bibliography, and use the style used there in
preparing your own Bibliographies and Reference lists for your written work.
Handouts, assignments, and announcements
All handouts, assignments, and announcements shall be posted on ELMS. I shall also
use your official UMD email to communicate with you. It is each student’s
responsibility to check for announcements and to read their University email.
Should you send me email from a non-University account, please make sure that
HONR258 appears in the subject line. Otherwise, I am likely to delete your message.
Evaluation
You are required to complete 4 pieces of work in order to pass this class. Your grade
will be determined on the following basis:


1 exegetical exercise (500-750 words)
2 short papers (1000-1500 words each)


1 take-home final exam (1700-2500 words)
Class participation
1 x 15 = 15
1 x 20 = 20
1 x 25 = 25
1 x 30 = 30
1 x 15 = 10
Maximum points = 100. A+ (95-100); A (85-94); A- (80-84); B+ (75-79); B (70-74);
B- (65-69); C+ (60-64); C (55-59); D (50-54); F (<50).
The due dates for the work mentioned are on the syllabus. We will stick to those
dates unless I announce otherwise in class or via ELMS.
Class participation
Since this is a seminar, we are jointly responsible for its success. Your class
participation will be assessed on the basis of the frequency and quality of your
contributions to discussion. It should go without saying for Honors students, but I’ll
say it anyway: I’ll expect you to have the done the reading for each class in advance
and always have the day’s assigned reading with you in class.
Class excursions
We will take advantage of our proximity to Washington, D.C. to make a number of
excursions/field trips. These will take place on a Friday (see syllabus). We shall visit
the National Archives, the Newseum, and the NRA. In addition, you are strongly
encouraged to attend one session of oral argument at the Supreme Court. Only 50
members of the general public are permitted to attend the full session of oral
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argument; the remainder of seats are available to members of the Supreme Court
Bar and to parties with an interest in the cases being heard. This means that one
must get to the Court early (say, 5:30AM) and wait for quite some time in line until
the security guards open the doors. Yes, it is an effort. However, it is very much
worth it. Please see http://www.supremecourt.gov/ for visiting details.
Academic Integrity
It is central to the mission of any University and to the practice of education
generally that each of us hold ourselves and our colleagues to the highest standards
of academic integrity. Cheating, dishonesty, and plagiarism directly violate the core
values of academe. We are enormously privileged to be part of this learning
community, where we are free to explore things that interest us, to develop our own
ideas, and to learn from others. Certain responsibilities come along with this
privilege. In particular, the work you submit for grading must be your own. You
must make every effort to ensure that you properly credit others when you use their
ideas or their words in your papers. If you are in any doubt about how to do this,
talk to me. Please also note that work you have submitted for a grade in another
class may not be submitted for a grade in this class. Please familiarize yourself with
the University’s Code of Academic Integrity available at:
www.president.umd.edu/policies/iii100a.html
Policies
These policies apply to everyone enrolled for credit in this course. There will
be NO EXCEPTIONS – NONE. In order to avoid any unpleasantness later, please
read them carefully now.
1. You must complete all assignments in order to pass the class, including
the ungraded exegetical exercise. If you fail to complete just one of
these, you will receive an F for the course. Work is due on the dates
indicated on the syllabus unless I announce otherwise in class or via
ELMS. Please plan ahead.
2. If you think you require an extension, you must ask me. You must have
serious grounds for an extension. Work in another class does not count as a
sufficient reason for an extension in this class. When the need for an
extension for medical reasons arises, you must present a medical note. In any
case, you must request an extension at least 2 weekdays prior to the due
date. Extensions requested after that will not be granted. Please note that
work that is late without an extension will not be accepted for a grade
and you will fail the course.
3. No re-writes will be allowed. However, I am always happy to read and
comment on a (complete) draft of any of your written work. I encourage you
to take advantage of this. I generally need about 48 hours to comment,
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depending on how many drafts I am reading.
4. There will be a 24-hour “cooling off” period after the return of all graded
work. You must take at least a day to read over the comments I have
provided before talking to me about those comments or your grade.
5. I have a zero tolerance policy regarding academic misconduct. If I suspect
you of cheating or plagiarism, I will send a report to the Honor Council. If you
are found guilty of cheating or plagiarism, severe penalties, including
expulsion, may result.
6. Regarding electronic equipment: please turn off pagers and cell phones;
remove MP3 earbuds; you may bring laptops to use in class, but rest assured
that if you abuse this permission by checking your email or engaging in any
other non-course related surfing, I will confiscate your laptop for the
remainder of that day’s class.
7. You may bring drinks, but no food, to class.
8. 100% class attendance is expected. If you must miss class, arrive late or leave
early for health or professional reasons, please let me know in advance.
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Syllabus
August
30
Introductory meeting.
End of Life Issues
September
1
Video screening: On Our Own Terms.
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NO CLASS – LABOR DAY, but do background reading:
Wolf, “Confronting Physician-Assisted Suicide”.
Cowart & Burt, “Confronting Death”.
Video screening, cont.
In the matter of Karen Ann Quinlan
Cruzan v. Director of Missouri Department of Health
Bouvia v. Glenchur
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13
15
Brock, “Voluntary Active Euthanasia”.
Battin, “Terminal Sedation”.
Dworkin et al., “Assisted Suicide: The Philosophers’ Brief”.
Washington v. Glucksberg
Vacco v. Quill
Hendin & Foley, “Physician-Assisted Suicide in Oregon: A
Medical Perspective.
Exegetical exercise DUE by 12:00 noon, Friday, September 17, 2010.
Constitutional Interpretation
17
20
22
Visit National Archives.
Epstein & Walker, “Understanding the U.S. Supreme Court”.
Sunstein, Radicals in Robes, Chapter 1.
27
29
Ely, Democracy and Discontent, Chapters 1 – 3.
Ely, cont.
‘Discovering’ the Right to Privacy and Abortion.
October
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6
Griswold v. Connecticut
Bork, “The Right of Privacy”.
Roe v. Wade
First short paper DUE by 12:00 noon Friday, October 8, 2010.
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Thomson, “Abortion”.
Fung, “Making Rights Real: Roe’s Impact on Abortion Access”.
6
13
Aftermath of Roe – abortion laws and sexual privacy.
The Second Amendment and Gun Control
October
15
18
20
25
27
Visit NRA (in Virginia).
LaFollette, “Gun Control: The Issues”
Wheeler, “Gun Violence and Fundamental Rights’.
Stark, “Fundamental Rights and the Right to Bear Arms”.
Heritage Foundation, Audio, “The Second Amendment: An
Individual Right”.
District of Columbia v. Heller.
McDonald v. Chicago.
The Eighth Amendment, Punishment and the Death Penalty
November
1
3
Wood, “Punishment: Consequentialism”
Wood, “Punishment: Nonconsequentialism”
Second short paper DUE by 12:00 noon, Friday, November 5, 2010.
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10
15
17
Furman v. Georgia
Gregg v. Georgia
Roper v. Simmons
Sarkar, “Too Young to Kill? U.S. Supreme Court Treads a
Dangerous Path in Roper v. Simmons.”
Dresser, “Neuroscience’s Uncertain Threat”
Moriarty, “Flickering Admissibility: Neuroimaging Evidence in
the U.S. Courts”
Baze v. Rees
Butler, “Comment: Baze v. Rees: Lethal Injection as a
Constitutional Method of Execution”.
The First Amendment, Free Speech and Campaign Financing
19
22
24
Visit Newseum.
Dwyer, “Free Speech”.
De Luca, “Free Speech, Political Equality, and Campaign
Finance Reform: A Paradox for Democracy?”
29
Citizens United v. Federal Election Commission.
Khimm, “The Citizens United Effect”.
Glasser, “Understanding the Citizens United Ruling”.
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December
1
Review session – picnic. Distribution of final exam.
Last week of class, December 6 – 8. I shall be at conferences in Europe during this
week, so the seminar will not meet. Instead, you will use this time to complete a
take-home final examination. The due date is: Friday, December 10, by 12:00
midnight.
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