A Framework for Judging the U. S. Supreme Court

JeDon Emenhiser, Fall 2015, Osher Lifelong Learning Institute #47487, Humboldt Bay Aquatic Center


This course attempts to test a framework with which we can judge decisions of the U.S. Supreme Court. It is not expected that using the framework will make everyone agree with each on their evaluations. But it is anticipated that it will allow those who use it to see where and why they agree or disagree on their judgment of the Court and thus engage in an informed and focused public debate.

The assumptions underlying this course are (1) that Americans aspire to governance by consent of the governed, (2) that meaningful public deliberation is necessary to decide whether to consent or dissent, (3) that meaningful deliberation regarding the activity of any institution of government, including the Supreme Court, requires a clear understanding of its purpose, and (4) perhaps most importantly consent of the governed involves considering both majority rule and minority rights.

Since the U.S. Supreme Court is a major institution of American government it is fair game for evaluation by the public, journalists, pundits, lawyers, judges, and scholars. Some judgments may be positive, some negative. Most non-academic critics judge the Court's decisions on their policy results. Does the Court's action favor or oppose a particular governmental program? On the other hand, most lawyers, judges, and scholars evaluate the Court on its legal interpretation. Does it interpret the law legitimately or illegitimately? It is time to combine these methods into a new way of evaluating the Supreme Court of the United States in order to promote informed, public deliberation - the essence of consent of the governed.

With assistance of the instructor the class will use a framework to evaluate a number of recent Court decisions on establishment of religion, free exercise of religion, state powers, and marriage equality.

The class will meet two hours each week 3 p.m. to 5 p.m., for three Mondays, October 19, 26, and November 2 at the Humboldt Bay Aquatic Center, 932 Waterfront Drive, Eureka, CA.

Class Schedule

Week 1. During the first week the class will discuss the Court's constitutional authority and the procedures by which it operates in order to develop a tentative framework with which to judge the Court. The instructor will illustrate how the framework can used to enhance public debate by leading a discussion of the following:

Kennedy, Anthony. 2014. 5-4. Town of Greece v. Galloway. 572 U.S. ____. Upheld a municipality inviting religious leaders to deliver invocations at its board meetings.


Adler, Jonathan H. 2014. Supreme Court upholds legislative prayer in Town of Greece v. Galloway," The Washington Post. May 5.

Leading Cases, Constitutional Law. 2014. "Town of Greece v. Galloway," Harvard Law Review, 128 (1 November): 191-200.

Lupu, Ira C. 2009. "Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organization, The Pew Forum on Religion and Public Life, May.

Week 2. The class will consider modifying the framework and use it to evaluate the following two cases:

Alito, Samuel. 2014. 5-4. Burwell v. Hobby Lobby Stores, Inc. 573 U.S. ____. Voided a U.S. Department of Health and Human Services requirement for a closely held corporation to provide employees with health insurance that includes contraception medication and devices.

Roberts, John C.J. 2015. 6-3. King v. Burwell. 576 U.S. ___. Upheld the Secretary of Health and Human Services establishing Federal exchanges to offer health insurance in those states that do not establish their own exchanges, allowing the IRS to offer tax-credits to persons with low incomes when purchasing health insurance from such exchanges.


Cannan, John. 2013. "A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History," Law Library Journal, 105 (2): 131-173.

Emenhiser, JeDon. 1998. "The G-O Road." Humboldt State University.

_____. 2000. "Sacred Lands and Tribal Casinos: Images and Nature, Supernature, and Indianness," European Association of American Studies , Graz, Austria, 37 pp.

Greenhouse, Linda. 2013. "Doesn't Eat, Doesn't Pray and Doesn't Love," The New York Times November 27.

Pear, Robert. 2015. "4 Words Imperil Health Law; All a Mistake, Its Writers Say," The New York Times. May 26.

Week 3. In the third week the class will study another case and conclude by summarizing an overall appraisal of the evaluative framework and of the Court:

Kennedy, Anthony. 2015. 5-4. Obergefell v. Hodges. 576 U.S. ___. Voided state laws denying marriage licenses to same-sex couples.


Burger, Warren. 1982. 9-0. U.S. v. Lee. 455. U.S. 252. Upheld requirement for employers to pay social security tax for their employees despite their religious objections.

Eckholm, Erik. 2015. "Baker Who Denied Cake to Gay Couple Loses Appeal," The New York Times, August 13.

Emenhiser, JeDon. 2009. "Same-Sex Marriage as Existential Threat: Modifying the Norris-Inglehart Theory to Explain Proposition 8," European Consortium for Political Research, Lisbon. 28 pp.

Goodstein Laurie, and Adam Liptak. 2015. "Schools Fear Gay Marriage Ruling Could End Tax Exemptions," The New York Times, June 24.

Park, Haeyoun. 2015. "Gay Marriage State by State," The New York Times, June 26.

Stolberg, Sheryl Gay. 2015. "Uneasy Truce on Gay Marriage Is Shaken by Kentucky Clerk's Defiance," The New York Times, September 5.

Helpful Books and Articles

2015. "The Case Against the Roberts Court: A Decade of Justice Undone," Special Issue The Nation, October 12.

Chemerinsky, Erwn. 2015. The Case Against the Supreme Court, New York: Viking.

Editorial Board. 2015. "Biggest Questions Awaiting the Supreme Court," The New York Times, October 5.

Levy, Robert A., and William Mellor. 2008. The Dirty Dozen. New York: Sentinel.

Levin, Mark. 2005. Men in Black: How the Supreme Court is Destroying America. New York: Regnery.

Liptak, Adam. 2015. "Was this Past Supreme Court Session 'A Liberal Term for the Ages?'" Interview with Terry Gross, Fresh Air, NPR, July 2.

_____. 2015 "Chief Justice Amasses a Conservative Record, and Wrath from the Right," The New York Times, September 28.

Milllhiser, Ian. 2015. Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted. New York: Nation Books.

Parlapiano, Alicia, Adam Liptak, and Jeremy Bowers. 2015. "The Roberts Court's Surprising Move Leftward," The New York Times, updated June 29.

Roosevelt, Kermit III. 2006. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven, Connecticut: Yale University Press.

Useful Web Site

Congressional Research Service, Library of Congress, The Constitution of the United States of America: Analysis and Interpretation. 2013.

Oral Arguments


C-SPAN, "Supreme Court"

Supreme Court Historical Society, Videos

U.S. Code

IIT Chicago-Kent College of Law, "Oyez"

Wikipedia, "Landmark Decisions"

If you have any questions, please send me an email : jaepat@suddenlink.net
October 2015