EXAM 1 Study Guide - Dr. Baird PDF

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Dr. Baird...

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Exam format: ● 7 multiple choice questions (each is worth 20 points, so if you fuck up you get two extra chances. Cannot exceed 100%). ● There are extra short answer questions you should ONLY ANSWER AFTER YOU HAVE ANSWERED ALL THE SHORT ANSWER QUESTIONS. Each is worth 5 points (I think yes!), so if you didn’t choose the best answer then you can make some points back. ● All points are lost if you confuse normative with factual. From the review day: ● Pay attention to when she tries to make arguments normative (she’ll try to trick you with this). ● Be able to come up with ways for when an arguments might not be successful (so, for the readings come up with the conditions under which their arguments work and the conditions under which they don’t work). ○ Ex.) There’s no poverty defense fund, so if your argument is about the importance of interest groups in bringing a case to the SC, there won’t be many cases about being poor. ○ Similarly, sometimes there is only one specific rebuttal to something (it may not always be systematic). There may just be one fact or example you can use as a rebuttal, it doesn’t have to be an entire theory that says something else. ● SHE MAY SAY WE READ AN ARTICLE THAT WE DIDN’T ACTUALLY READ ○ So don’t panic if you don’t recognize something bc she’s trying to fuck with you ● Hypothetical example question from review: ‘Imagine that you are Justice John Roberts and you want to ensure conservative rulings on economic cases, how would you do that?’ (some questions will be in this structure, a hypothetical where you just have to know what the readings say to be able to answer them). ○ Signalling and throw liberals a bone sometimes. ○ You can say literally whatever you want in an opinion, so in a completely unrelated case, you could just say: ‘here’s what I think about the Estate tax’ ■ When lawyers read that opinion, they’ll go oh shit let’s bring this guy a case on the estate tax. ■ Judges later can cite the rhetoric in an opinion, not the outcome of the case ○ Rule for liberals on some cases that aren’t related to the economy ■ I think doing this is just to ensure legitimacy, but probably should find it in a reading somewhere. ○ Ex.) Marbury v Madison (goal of court: get power) ■ Give Madison what he wants, & in doing so declare the writ of mandamus (a judicial writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty) unconstitutional -- which itself establishes judicial review

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Madison isn’t going to get pissed and say you can’t do that because he got what he wanted.

Two most consistent readings ● Smithey and Epstein & Knight ○ Arguing the exact same thing just in different ways ○ Smithey uses multiple examples and describes the process ○ Epstein & Knight use one example and formalize the process with game theoretical reasoning ● This is definitely the best answer Two least consistent readings ● This is a lot harder to answer than the which readings are consistent ● Hall and Rosenberg ○ They’re responding directly to each other ● Baird & Jacobi and McGuire ○ Baird & Jacobi (about power) say that courts can get what they want later on by asking for it in signalling -- judges ○ McGuire (about compliance) shows that even when you signal and get what you want, lower courts just may not comply if they don’t want to ■ Doesn’t matter how much power you have if people don’t ever comply anyway ● Caspar and Dahl (I’ll have to review these to know why I don’t remember them) READING NOTES all of these need IVs and DVs added ● Dahl (countermajoritarian)-- aren’t Dahl and Casper in the same reading?? ○ Arguments: ■ The SC as a national policy maker ○ Assumptions: ■ SC should not be influenced by policy goals ● Goes against Rosenberg, who wants the courts to be more powerful ● Also relates to Hall-- Hall says yes the court can sometimes be counter majoritarian, but only in specific circumstances ■ “Thus to affirm that the Court supports minority preferences against majorities is to deny that the popular sovereignty and political equality at least in the traditional sense, exist in the United States; and to affirm that the Court ought to act in this way is to deny that popular sovereignty and political equality ought to prevail in this country,” (Dahl, 65). ○ Assertions ■ “The fact is, then, that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States,” (64).

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○ Goals: ○ Convincing? Casper (states) ○ Arguments: ■ The warren court = associated with the characteristics that Dahl found to be lacking in the Supreme Court’s activism & influence on national policy and protection of fundamental rights of minorities against tyrannical OR indifferent majorities ○ Assumptions: ■ The court is not actively looking to protect minorities ■ Signaling is not a thing (Baird - Jacobi) ○ Goals: ■ To understand the different ways in which the supreme court is lacking in protecting minorities through activism and influence on national policy ○ Convincing? ■ Somewhat, after reading the signaling article it is difficult to come to a conclusion in what the court’s intentions truly are Smithey (judicial review) ○ Arguments: ■ “...judges in all three places acted strategically when trying to expand the power of their courts. They all pursued sophisticated strategies, rather than merely voting their policy preferences, when first claiming the power of judicial review.” ● This is what we’ve been talking about in some other readings and in general: sometimes you have to throw someone a bone to be able to solidify your policy preferences ■ “It is the claim of this paper that judges are also motivated by the desire to protect and promote the power of their courts, and that they employ sophisticated strategies to accomplish such ‘institutional’ goals,” (3). ● Okay also pretty broad like noted above for Smithey ■ Called “institutional maintenance” ○ Assumptions: ■ Courts want to be more powerful ■ Institutional goals do not always conflict with policy goals (maybe an assumption?) ■ “An institution often becomes an important ‘locus of identification’ for the officials affiliated with it. Officials tend to develop a sense of personal affiliation and stewardship for the institutions in which they serve,” (4). ○ Assertions: ■ Attitudinal model (the model which states that strategic factors have no influence on judges’ decision making) seems to be a good fit for present-day, since the court’s power is already established (assertion?)

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“By invoking the language of legal obligation, judges may use opinions to cultivate a shield of public support for the new powers they claim. Judges may strategically combine their votes and opinions, voting in ways that please crucial political actors, while writing opinions designed to legitimate assertions of judicial power,” (9). ○ Sounds like Baird and Jacobi.

Goals: ■ Describe how courts gain more power using examples from the years immediately following establishment ○ Convincing? ■ Yes in so far as there are multiple examples, but her specific argument is a little bit general. Just saying that they act strategically and then giving varying examples without statistics is interesting, but there is a limit to its specificity and generalizability. ○ How it relates to other readings: ■ BAIRD & JACOBI ● In the review day description above. Signalling would require occasionally throwing the other side a bone, just on cases that aren’t what you really want to get done ■ EPSTEIN & KNIGHT ● Huge explanation of marbury v madison, which is also explained above Rosenberg (Hollow Hope) ○ Arguments: ■ “Although the conventional wisdom, as cited above, and shared by proponents of the Dynamic Court view, is that the federal courts, through Brown and its progeny, played a crucial role in producing both changes in civil rights and an active civil rights movement, truth is not thereby assured… The role of courts in the civil rights movement may have been to bring to light the existence of discrimination and keep it prominent, changing public opinion about civil rights and forcing action from Congress,” (40-41). ○ Assumptions: ■ Civil rights movement was good ■ Brown v Board ruling was good ■ Possibly that more judicial independence would be good ○ Goals: ■ To convince liberals that they shouldn’t put all of their hopes into a SC case because the court can’t actually implement its decisions ○ Convincing? ■ Eh -- maybe to dumb liberals or conservatives honestly

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Only focuses on the short-term power of the court and nothing about the court, or really anything about government, is meant to move quickly ○ What is it missing? ■ People value a lot the rulings and legitimacy of the court, and if the other branches really did just ignore the rulings from the court the people would probably be PISSED ● Maybe could relate to hall and when the court is counter-majoritarian and when it isn’t? ● People actually matter Baird-Jacobi (signaling) ○ Arguments: ■ Justices face a major institutional hurdle in judicializing issues throughout the American body politic: whereas legislatures can proactively set their agendas, courts can only hear cases that have been litigated. ■ When Supreme Court Justices want to influence policy regarding employment discrimination, they must wait for cases that represent each one of those issues to be litigated. ■ The courts are seemingly dependent on litigants to set their agendas, a considerable limitation on their agenda-setting power and their broader influence over the development of law. ○ Assumptions: ■ Conventional explanations are not true ● “Among the most common explanations for the expanding role of courts in making public policy is that legislatures have been overwhelmed with the complexity and number of issues and therefore abdicate their role of legislating in certain policy areas.2 Another conventional explanation is that activist justices are to blame.” ○ Goals: ■ Explain and understand the complex ways in which cases are brought to the supreme court. ○ Convincing? ■ Yes however most people in the justice system will not admit to this process occuring outright Bailey and Maltzman (Goldilocks: judicial independence) ○ Arguments: ■ “In short, the Court is a Goldilocks institution: it must be independent enough to protect democracy, but not too independent lest it threaten the ability of people to govern themselves,” (first paragraph). ■ Four mechanisms for the elected branches to influence the court ● Appointments, judicial deference, overrides, expertise ○ Assumptions:

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The justices have to keep in mind or need to create this balanced institution

Goals: ■ Explain the balance between justices wanting to resolve disputes “on their merits and not on the basis of political or economic power” and the fact that the court cannot be too independent. ○ Convincing? ■ Yes, but maybe just because it’s super straightforward and I would have guessed all of it already Epstein and Knight (Marbury) ○ Arguments: ■ Constitutions only matter so much as they are abided by after their implementation ● No consent to constitutions vs. a contract requires consent to work ■ The maintenance of certain institutions lies in the “...short-run strategic choices of political actors,” (88). ■ “...we view institutional development as a contest among actors to establish rules which structure political competition to those outcomes most favorable for them,” (90). ○ Assumptions: ■ “To put it simply, we assume that jurists are strategic actors,” (92). ■ “...regardless of whether they are motivated by self-interest, the public good, impartial principle, or some combination of these or other motivations, political actors usually engage in strategic decision-making when they interact with others in order to derive a solution to a political problem,” (101). ○ Goals: ■ “...we had four goals in mind…” (102). 1. Determine whether all the events in Marbury v Madison are part of the same game or different games 2. Identify the alternative courses of action the actors thought they had at the time 3. Establish the actors’ preferences over the various outcomes 4. Incorporate the fact that the Jefferson-Marshall conflict takes place in a political context in which the actions of congress affect likelihood that either actor will successfully achieve their goals ○ Convincing? ■ Yes, because the formalization of this theory allows you to test for which specific situations the theory would work for and which it wouldn’t work for. ○ DV(s) (all from page 91)

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Political and institutional preferences of the relevant political actors Strategic structure of the political interaction in which the constitutional dispute arose ■ the political context in which the controversy took shape McGuire (religious cases) ○ Arguments: ■ Lower courts are likely to ignore supreme court precedent if they are southern and evangelical ○ Assumptions: ■ Cases in which religious minorities (basically everyone except christians) are more hurtful than others ■ The court does care about discrimination ■ America is deeply religious ○ Goals: ■ To understand the external pressures that affect judicial decision making ○ Convincing? ■ Yes, this reading is quite convincing because america has a history of religious issues ● abortion/contraception, gay marriage, school vouchers, evolution in schools, AIDS research, stem cell research, etc. Hall (acquittal theory) ○ Arguments: ■ “Courts armed with judicial review can thwart majority will by relieving individuals from government sanctions, but they lack the power to independently impose sanctions… the nature of judicial power ensures that judicial review reliably promotes a core democratic value--freedom from government domination--- without seriously threatening other democratic values,” (from the abstract). ○ Assumptions: ■ The court is/should be limited in some way (or the opposite, depending on how you frame it??) ■ The court isn’t always an undemocratic institution (or, again, the court is too majoritarian). ○ Goals: ■ “Therefore, the task at hand is to defend American-style judicial review by identifying a democracy-reinforcing function that can be reliably performed by courts armed with the power to invalidate legislative acts. More specifically, a compelling justification for judicial review must satisfy two criteria…” a realistic function of the courts and provide normatively attractive conception of that function (democratic understanding of legitimacy) (392). Barnett (natural laws and natural rights) ○ Arguments:

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■ There is a difference between natural law and natural rights. ■ Both are fundamental to american gov and society ○ Assumptions: ■ Natural law = how to exercise the liberty that is God given ■ Natural rights = god given liberties ■ Assumes that everyone believes in these two concepts - esp the god part ○ Goals: ■ There’s a difference between natural laws and natural rights, and that’s important because natural rights come from God, and “...natural-law ethics instructs us on how to exercise the liberty that is defined and protected by natural rights,” (Barnett, 669). ○ Persuasive? ■ In the sense that natural laws are different from natural rights, but not in the sense that they come from God. Hardin (constitutions and contracts) ○ Arguments: ■ A constitution is not a contract, “...it creates the institution of contracting… it’s function is to resolve a problem that is prior to contracting,” (Hardin, 101). ● NO CONSENT IN CONSTITUTION ● Contracts resolve prisoners dilemmas, constitutions are coordination problems, not cooperation problems. ○ Assumptions: ■ This is an important distinction because there are normative implications of trying to compare a constitution to a contract ■ “Thinking of the so-called state of nature is grossly misleading in this respect because it tends to focus our attention on what we already have rather than on what we may produce under the relevant region of coordination,” (107). ○ Assertions: ■ Legal contracts require external sanctions, constitutions are enforced by their own internal sanctions ■ Contracts are a single exchange, constitutions are repeated interactions ● This changes how you behave ■ A contract is an agreement. A constitution does not have to be agreed upon to come into being. ○ Convincing? ■ Yes, definitely. People have a tendency to confuse coordination and cooperation problems, but those differences influence but the structure of the game, the strategy, and the solutions. Epstein & Walker (parts 1 and 2) -- simply factual, historical reading. ○ Arguments:

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Simply just goes into the factual history of the constitution, judicial system, and the bill of rights.

Goals: ■ To understand the relationship between the supreme court and the constitution. ■ To understand the institutional powers and constraints of the judiciary ■ To understand the history and purpose of the bill of rights Convincing? ■ Yes, these are mostly factual arguments -- hard to argue...