The Roberts Court

Spring 2022

Outline & Readings

Notes:
(1) This is hardly an inclusive list of the many studies on the Roberts Court. If you're interested in additional readings, please contact Lee Epstein.
(2) The dates in parentheses are approximate. We'll try to stick to the schedule but departures may occur. At the end of each class we'll announce the topics for the next session.

I. Introductory Material (February 11, February 12)

1. Intro to the Course: Goals, Syllabi, Exam

2. Supreme Court's Procedures/Processes

3. The Justices of the Roberts Court

4. The Roberts Court's Greatest Hits (So Far)

5. Researching the Court

Readings

• Lee Epstein, Kevin McGuire, & Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice, 11th ed. (Washington, D.C: CQ Press/Sage, 2022), pp. 11-21

• Adam Liptak, “Justice Barrett Says the Supreme Court’s Work is Not Affected by Politics,” New York Times, September 30, 2021

• Adam Liptak, “Back on the Bench, the Supreme Court Faces a Blockbuster Term,” New York Times, October 3/December 1, 2021

• Adam Liptak, “A Supreme Court Term Marked by a Conservative Majority in Flux,” New York Times, September 30, 2021

• Adam Liptak, “How Conservatives Weaponized the First Amendment,” New York Times, June 30, 2018

• Adam Liptak, “An Extraordinary Winning Streak for Religion at the Supreme Court,” New York Times, April 5, 2021

II. Appointing Supreme Court Justices (February 12, February 24)

1. Vacancies

2. Nomination

3. Confirmation

Readings

• (optional) Please listen to President Franklin D. Roosevelt propose expanding the size of the Court

• Adam Liptak, “The Precedent, and Perils, of Court Packing,” New York Times, October 12, 2020 (the accompanying report is here)

• Adam Liptak,  “Justice Breyer on Retirement and the Role of Politics at the Supreme Court,” New York Times, August 27, 2021

• Elizabeth Dias & Adam Liptak, “To Conservatives, Barrett Has 'Perfect Combination' of Attributes for Supreme Court,” New York Times, September 20/October 26, 2020

• Please watch this 5-minute video: How Supreme Court Confirmations Became Partisan Spectacles

• Adam Liptak, “Avoid, Sidestep, Retreat: Justices’ Advice on Confirmation Tactics,” New York Times, March 19, 2017

III. Access to the Court (February 24, March 3)

1. Petitions

2. Processing Petitions

3. Clerks

4. Certworthy Petitions and the Roberts Court

Readings

• Adam Liptak, “Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket’,” New York Times, October 4, 2021

• Adam Liptak, “A Cautious Supreme Court Sets a Modern Record for Consensus,” New York Times, June 25, 2017

• Adam Liptak, “A Sign of the Court’s Polarization: Choice of Clerks,” New York Times, September 6, 2010

• The Echo Chamber (A Small Group of Lawyers and Its Outsized Influence at the U.S. Supreme Court), Reuters, December 8, 2014. Please read the story and watch the video, Familiar Voices

IV. Lawyering (March 10, March 24, March 31)
[March 17 is Spring Break]

1. Types of Lawyers

2. Tools of Lawyering: Briefs, Oral Argument

Note: Lisa Blatt, Chair of Williams & Connolly’s Supreme Court and Appellate practice, will visit our class on March 31.

Readings

• Kimberly Strawbridge Robinson, “Men Repeat at Lectern—Firms, U.S. Drive Supreme Court Gender Gap,” Bloomberg Law, May 10, 2021.

• Adam Liptak, “Why Obama Struggles at Court, and Trump May Strain to Do Better,” New York Times, January 23, 2017. (The L. Epstein/E. Posner study is here.)

• (optional) Richard J. Lazarus, “Advocacy Before and Within the Supreme Court,” 96 Georgetown Law Journal 1487 (2008)

• Adam Liptak, “Just Ideology? A Study Finds Another Predictor of Supreme Court Decisions,” New York Times, July 22, 2019

• Adam Liptak, “Justice Clarence Thomas, Long Silent, Has Turned Talkative,'“ May 3, 2021

• Lee Epstein, William M. Landes, & Richard A. Posner, The Behavior of Federal Judges (Cambridge, MA: Harvard University Press, 2013), Chapter 7

V. Decision Making (April 7)

1. Processing Cases

2. Making Decisions

Readings

• (skim) Lee Epstein, William M. Landes, & Richard A. Posner, The Behavior of Federal Judges (Cambridge, MA: Harvard University Press, 2013), pp. 110-116

• (optional, pp. 12-22) Lee Epstein, Urska Sadl, & Keren Weinshall, “The Role of Comparative Law in the Analysis of Judicial Behavior,'“ American Journal of Comparative Law, forthcoming.

• Adam Liptak, “Precedent, Meet Clarence Thomas. You May Not Get Along,” New York Times, March 4, 2019