Fall 2021 • Seminar
The Supreme Court as a Lawmaking Institution
Prerequisites: Constitutional Law
Exam Type: No Exam
Although the Supreme Court is ostensibly subject to the same Article III constraints as other federal courts, it is in many respects a lawmaking institution, crafting rules and establishing frameworks for lower courts to apply. This seminar will examine the Court’s distinctive roles – as gauged in comparison with those of the lower federal courts – from a variety of perspectives. Reading assignments may draw on literatures in analytical jurisprudence (in what sense or senses is the Court a lawmaker?), normative constitutional theory (how, methodologically, should the Court approach the hard cases that come before it?), positive political theory (to what extent and through what mechanisms are the Justices influenced by public opinion and currents in electoral politics?), and institutional design (should the Court be reformed from the outside, either through constitutional amendment or congressional legislation?).