LAW 416

The Supreme Court of the United States

Constitutional & Public Law

This is a course on the Supreme Court of the United States, with a special emphasis on the Court’s status as a political institution in American life.  As lawyers and citizens, we mostly are concerned with the outcome of the Supreme Court’s processes – the decisions handed down each year by the Court.  But in order to understand these decisions, we need to understand the institution that generates them.  How are nominations to the Court made?  How does the Senate decide whether to confirm a nominee?  How does the Court decide which cases to take?  How can advocates improve their chances of getting the Supreme Court to take a case?  How do the Justices reach their decisions?  Who are the other players in the process and what roles do they have?  Through the readings, class discussions, and practical exercises, we will try to answer such questions and come to a better understanding of the Court and its processes.Harry Litman of UCLA Law’s Ziffren Institute, founder of the Talking Feds podcast and Legal Affairs Columnist for the op-ed page of the LA Times, will play a central role in the class along with Mark Greenberg. The class will also feature visitors with extensive first-hand knowledge of Supreme Court litigation.The Court is at a critical juncture in its history. Recent appointments have resulted for the first time in at least 50 years in a supermajority of like-minded Justices that can dictate results. This development may affect not just the course of the law, but also the perception of the court as an impartial and collegial decision-maker. One manifestation of the exceptional nature of the moment is that for the first time in almost a century, proposals to alter the makeup of the court are being seriously entertained. The Court’s current situation highlights the importance in U.S. political life of the Court nomination and confirmation process. We will examine the role of the President and the Senate in this process.  We will consider the Court’s role as the accepted final decisionmaker for many of the nation’s most important controversies.  We will give special attention to the Supreme Court’s interaction with the executive branch.

We will devote several class sessions to investigating the internal workings of the Court, from its selection of which cases to hear, through oral arguments and the Conference, to the opinion-writing process.  

A central feature of the course will be exercises in which the students take on the role of Justices and other participants in the Court’s decision-making processes. For example, in our study of the certiorari process, students will be assigned real cases in which petitions for certiorari are currently pending before the Court. Students will evaluate the “certworthiness” of petitions and undertake to persuade their colleagues in Conference of which cases the Court should hear. Similarly, students will take the role of Justices in deciding real cases that are before the Court this Term. The class meets on Monday and Wednesday afternoons. Monday afternoon sessions will generally be seminar-style discussion and will take place in person. Wednesday afternoon sessions will typically be practical exercises, and they will take place remotely on Zoom. Among other advantages, having Wednesday sessions on Zoom will enable us easily to split into multiple courts (or other small groups) without needing several classrooms, which are not available in the current situation. It will also enable Professor Litman, who is based in San Diego, to participate in many of the Wednesday classes. (He will be able to be in Los Angeles in person for the Friday sessions.)

The course aims to familiarize students with the role that the Supreme Court plays in the nation’s political culture; to equip them with tools for understanding the considerations the Court itself employs in choosing and deciding cases; and to develop skills relevant to advocacy before the Supreme Court or other appellate courts.  Students will gain a greater appreciation for the Court as an institution and will develop a more nuanced and sophisticated way of thinking about the important cases that the Court will take up in the future during their own legal careers.

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