From Nixon to Reagan to Bush:
Assessing the Conservative Campaign to Transform American Law
Kevin McMahon, Trinity College,
Chercheur invité Fulbright/Cérium
Cours donné à la maîtrise en études internationales, hiver 2006
In his successful 1968 campaign for the American presidency, Richard Nixon consistently
suggested that recent U.S. Supreme Court decisions had helped disrupt the nation’s “law-and-order” and
erode its moral fabric. Since that time, conservatives have continued this line of criticism, accusing
courts—to great political benefit— of making policy, of practicing “judicial activism.” As President
George W. Bush noted with regard to the issue of gay marriage in his 2004 reelection campaign: “Activist
judges have begun redefining marriage by court order, without regard for the will of the people and their
elected representatives. On an issue of such great consequence, the people's voice must be heard.”
To some extent, the reality of judicial policymaking reflects the obvious truth that law is policy
and that in the everyday application, interpretation, and implementation of that law, courts are inevitably an
interrelated part of a much broader, dispersed policy process. There is, then, a constant tension in the work
of courts. While they are not “supposed” to make policy, they often do. While conservatives argue that
“liberal” judges and justices have nevertheless not been sufficiently restraintist in their decision-making,
others argue that the courts’ seemingly expanded role in the policy process is a function of an increase in
the demands placed on them by individuals, interest groups, and other governmental institutions. This
reflects broader trends in society, and politics, and government, rather than a function of a core of “activist”
judges.
In exploring this criticism and defense of judicial action, this course examines the role of litigation
and court decisions in the policy making process, the nature and political consequences of judicial decisionmaking, and the implementation of constitutional rights. In doing so, it assesses the effectiveness of the
conservative campaign to transform American law; a campaign that spans from Nixon to Ronald Reagan to
George H.W. and George W. Bush. While the course will also explore the role of non-judicial
institutions—such as the executive branch and the Congress—in shaping the law, it will focus its sharpest
attention on the role of courts—particularly the United States Supreme Court—in the development and
expression of the current conservative Republican political order. As a result, it will analyze the political
importance of cultural issues—ranging from abortion to gay marriage—that are at the center of disputes
dividing the Red/Blue America of today as well as issues involving terrorism and the law. Finally, it will
seek to assess how Canadian courts have dealt differently than their U.S. counterparts with the conservative
agenda.
Books:
Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America (Basic
Books, 2005), ISBN: 0-465-08326-9
David Yalof, Pursuit of Justices (University of Chicago Press, 1999, 2001), ISBN: 0226945464
Additional readings will be available electronically
Requirements, Policies, and Procedures
Class Attendance, Preparation, and Participation—Attendance is required. It will be monitored
each class. Any unexcused absence will result in points being subtracted from your final grade.
Together with active class participation, attendance will constitute 20% of your final grade. You
are able to participate actively in class when you have read the assigned materials in advance;
when you are able to restate the important information and arguments found there; and when you
have formulated interesting questions or comments in response. Students should be prepared to be
called upon in class. Lectures and class discussions will be conducted in English.
Requirements and Grading—Students will be required to write two analytical essay, and a
research proposal. Essays are due at the beginning of each class period. Late reports and
essays will not be accepted. On the class day a student is scheduled to write an essay, s/he will
also be required to lead class discussion by outlining and commenting extensively in the assigned
readings. On most class days, four students will be scheduled to both write an analytical essay and
lead discussion. During a typical class, the discussion will take place after a lecture on the subject
of the day. In addition to the essays, students will need to complete a research proposal. As part
of their research project, students will have to present their research proposal at the end of the
semester. Late papers/exams are strongly discouraged and are heavily penalized. Each day
(including weekends) a paper is late, one-half letter-grade will be subtracted (e.g. from a B+ to a
B). You must complete all assignments. The final grade will be calculated as follows:
Class Attendance and Participation—25%
Review Essays (including presentation)—20% each (40% total)
Research Proposal Presentation—10%
Research Proposal—25%
Academic Integrity—You are encouraged to discuss class materials and assignments with your
fellow students. However, all written work must be entirely your own. For example, you may not
review and borrow from another student’s work on a paper assignment unless you explicitly
acknowledge that you have done so. Plagiarism, or any other violations of standards of academic
integrity, will be dealt with through formal disciplinary action.
Absences from Exams and Incompletes—Generally, only extreme, unexpected and welldocumented emergencies will constitute an excuse for a student being granted an extension, or
being granted an incomplete.
Course Outline and Readings (all dates are approximate and readings are subject to modification)
Part I: Political Origins and Nature of Judicial Decision Making
January 10 (1:00pm)
Introduction: Conservative Politics and the Law
Recommended Reading:
John Micklethwait and Adrian Wooldridge, The Right Nation:
Conservative Power in America, entire
January 12 (8:30am)
The Regime Politics Model and the Political Creation of Supreme Courts in U.S. and Canada
Readings:
Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as National
Policy-Maker,” Journal of Public Law, 1957
Mark A. Graber, “Constructing Judicial Review,” Annual Review of Political Science
Howard Gillman, “Party Politics and Constitutional Change: The Political Origins of
Liberal Judicial Activism”, forthcoming in The U.S. Supreme Court and American
Political Development
Harold Spaeth, “The Attitudinal Model,” in Contemplating Courts, 1995
Keith Whittington, “‘Interpose Your Friendly Hand’: Political Supports for the Exercise
of Judicial Review by the United States Supreme Court,” in American Review of Political
Science
January 17 (1:00pm)
Democratic Dominance, Republican Reaction, and the Road to Judicial Conservatism
Readings:
McMahon, Reconsidering Roosevelt on Race, Chapter 4
Yalof, Pursuit of Justices, entire
January 19 (8:30am)
Theories of Constitutional Interpretation
Readings:
Edwin Meese, III, “A Jurisprudence of Original Intention”
William J. Brennan, Jr., “Reading the Constitution as Twentieth-Century Americans”
Leif Carter, Constitutional Interpretation
Sunstein, Radicals in Robes, Preface, Introduction, and Chapters 1-2
Part II: The Successes and Failures of the Conservative Effort to Transform American Law
February 21 (1:00pm)
The Right to Privacy and Abortion Debate
Readings:
Sunstein, Radicals in Robes, Chapters 3-4
Cases:
Griswold v. Connecticut
Eisenstadt v. Baird
Roe v. Wade
Planned Parenthood v. Casey
Washington v. Glucksberg
Lawrence v. Texas
March 7 (1:00pm)
Race and the Rights Revolution
Readings:
Sunstein, Radicals in Robes, Chapters 3-4
Cases:
Shapiro v. Thompson
Miranda v. Arizona
Michael M. v. Superior Court of Sonoma County
Foley v. Connelie
Cleburne v. Cleburne Living Center
Massachusetts Board of Retirement v. Murgia
San Antonio v. Rodriguez
Milliken v. Bradley
Gratz v. Bollinger
March 21 (1:00pm)
Free Speech
Readings:
Sunstein, Radicals in Robes, Chapters 9-10
Cases:
Brandenburg v. Ohio
Cohen v. California
Texas v. Johnson
Tinker v. Des Moines School Dist.
Campus Speech Debate
R.A.V. v. St. Paul
Barnes v. Glen Theatre
American Booksellers v. Hudnut
March 22 (4:00pm)
Presidential and War Powers
Readings:
Sunstein, Radicals in Robes, Chapters 6-8
Cases:
Youngstown Sheet & Tube v. Sawyer
U.S. v. Nixon
Clinton v. Jones
U.S. v. Curtiss-Wright Export Corp
War Powers Resolution
Executive Order on Military Tribunals
Hamdi v. Rumsfeld
Ex Parte Quirin
March 30 and 31
Attendance and Participation at the conference “Conservative Predominance in the United States: A
Moment or an Era?”
April 4 (TBA)
Presentation of Research Projects and Research Proposals Due