Memorandum to my Fall Semester Reading Group: Supreme Difficulties
As I wrote in the prospectus for the Reading Group we will have a mixture of readings and approaches. I want to start out with a consideration of the constitutionality of the health care mandate in the PPACA, which is very likely to reach the Supreme Court. I thought we should take at least the first two weeks on that, in part because the two opinions I would like you to read, the 11th Circuit’s opinion holding the mandate unconstitutional and Judge Sutton’s opinion in the 6th Circuit reach in the opposite conclusion are quite long. I have also added a little blog post of my own from SCOTUSBLOG, which I think goes just a bit too fast and too superficially.
After that we will switch gears and talk about personalities and style and their effect on the Supreme Court’s work. My focus will be on Justice Robert Jackson. I have posted the chapter on Jackson in William Domnarski’s, The Great Justices, 1941-1954. Domnarski’s account casts a shadow if not doubt on my own essay on style and character, focusing on Jackson, “Balls and Strikes.” (If you become fascinated with Jackson you might want to look at ch.s 4, 10, 18, 20, 25, 26, 28, 29, 20, 34, 37-39, 43, 44 (they are short) in Noah Feldman’s splendid Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. But Feldman’s story is best followed by reading the whole book, and the Domnarski chapter is relatively self-contained. )
Moving from Jackson to the signal accomplishment of the Warren Court, we will read the chapter on Brown v. Board of Education from Morton Horwitz’s unpublished manuscript of his book on the Warren Court, with a short appendix on Robert Jackson’s five unpublished draft opinions of what was to be a unanimous opinion.
If this does not exhaust our time, I have a number of possible reading topics and we can decide together what we should do. My thoughts include Bush v. Gore, the coming battle over the constitutionality of the Defense of Marriage Act, and Mark Tushnet’s ms. article on the First Amendment and abstract art.