The Supreme Court: History, Politics, and Minority Rule
Relative to the enormous power it wields over American life, the article of the U.S. Constitution that creates the judicial branch is surprisingly brief: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” From those 30 words has evolved an institution that, although unelected, has accrued decisive say over a wide spectrum of U.S. political, social, and economic issues, from privacy, labor, and voting rights to corporate and environmental regulation to criminal punishment and civil liberties. However well-draped in the mystique and paraphernalia of the law, the Supreme Court is unquestionably a political institution, occupied by political actors; and its centrality to U.S. government raises urgent questions about the nature of judicial power, the counter-majoritarian orientation of U.S. institutions, and the prospects of democratic movements to remediate inequality, injustice and, increasingly, the climate crisis. How did the Supreme Court rise to its present position? How can we understand its evolving power with respect to the U.S. history, institutions, and economic and social life—from the founding, through slavery, Reconstruction, industrialization, and civil rights, to the increasingly turbulent present?
In this course, we will examine the history of the Supreme Court with a long view that seeks to re-contextualize the ahistorical mystique of the Court—in its origins as well as its historical development alongside with the rise of capitalism and political democracy. Drawing on classic and recent scholarship in legal history supplemented by excerpts from seminal cases, we will trace the growth of judicial power within the American political system from its philosophical origins in the founding era through conservative and progressive transformations that have alternately curbed or furthered expressions of popular sovereignty. Central themes that we will consider include: the unresolved tension between property rights and human rights from the Dred Scott case onwards; the Court as a conservative bulwark against anti-corporate regulation since the Gilded Age; the structuring of citizenship rights for Blacks, women, and immigrants in the wake of the 14th Amendment; the rise of legal realism and liberal nationalist jurisprudence during the New Deal era; advocacy and resistance to the expansion of civil liberties and civil rights over the course of the twentieth century; and the ascendancy of the conservative legal movement over the last 50 years and its consequences for the current progressive agenda. Throughout, we will ask: In what ways have federal courts become a last resort in a period polarization and political deadlock? Are there alternative conceptions of constitutional interpretation that could help reinvigorate the democratic possibilities within our constitutional system beyond judicial power?
Course ScheduleThursday, 6:30-9:30pm ET
January 28 — February 18, 2021