Below are fourteen study questions to further focus discussion on the topics in this course. We hope students and others will respond to these questions by contributing analysis and argument during the week dedicated to a particular question.

1. American Colonial History with British Judges. What was the American colonial view of British Royal judges?
   
2. Federalist Papers on Judiciary. What did the federalist supporters of the Constitution think of the powers of the judicial branch?
   
3. Marbury v. Madison. Does Marbury v. Madison stand for the proposition that the Supreme Court is the final arbiter of what the Constitution means, and that the other two branches are constitutionally bound to respect Supreme Court decisions? If not, what does it stand for?
   
4. Judiciary Act of 1802. Is the passage by the Jeffersonians of of the Judiciary Act of 1802 — with its elimination of eighteen new federal circuit court judgeships – a precedent for how a current President and Congress together could take action against federal circuit court judges today, such as the judges of the Ninth Circuit? Was the Judiciary Act of 1802 a constitutional exercise of power by the popular branches of government?
   
5. Dred Scott v. Sanford. Would you have sided with Supreme Court Chief Justice Taney in his 1857 decision in Dred Scott, or would you have sided with Abraham Lincoln’s repeated criticisms of Dred Scott, from 1857 through 1860, his argument against Dred Scott in his First Inaugural in March 1961, and the actions taken in his administration in defiance of the Dred Scott ruling?
   
6. Lincoln’s First Inaugural Address and Dred Scott. Is the approach to Supreme Court decisions announced by Abraham Lincoln in his First Inaugural a legitimate precedent for future presidents to take toward Supreme Court decisions? Are future presidents any less constitutionally grounded in choosing to invoke a former president’s approach to constitutional interpretation (i.e. Lincoln’s) than are future Supreme Courts in invoking former Supreme Court’s approach to constitutional interpretation (the Cooper v. Aaron court)?
   
7. President Lincoln and the Issuance of Passports in Defiance of Dred Scott. What was the basis for Lincoln’s refusal to implement Dred Scott and was he constitutionally right?
   
8. FDR and the Case of the Eight German Spies. In June 1942, eight German spies were caught in the United States on a wartime mission to carry out industrial espionage against American targets. President Roosevelt made it clear to his Attorney General that he would not honor a writ of habeas corpus and that the prisoners would be tried and subject to execution no matter what the courts said. Did President Roosevelt take unconstitutional actions? Did he take illegal actions? If not, were Roosevelt’s actions only justified because it was wartime, or would any president be justified in disregarding court decisions with regard to certain executive actions?
   
9. Cooper v. Aaron. Is the Supreme Court’s decision in Cooper v. Aaron a binding precedent of general application that the legislative and executive branches are constitutionally bound to follow?
   
10. Cooper v. Aaron and Democratic theory. In Cooper v. Aaron, the Supreme Court declared, “Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is ‘the supreme Law of the Land.’” Can a democratic society survive without having a branch of government that decides constitutional disputes once and for all? If the United States did not have judicial supremacy and none of the three branches had the final say over constitutional controversies, would our government be able to function?
    
11. Reagan and the Courts. In 1986, President Reagan’s Attorney General Edwin Meese III gave a speech at Tulane University in which he drew what he called “a necessary distinction between the Constitution and constitutional law.”
    
    Meese went on to say that:
    
    to confuse the Constitution with judicial pronouncements allows no standard by which to criticize and to seek the overruling …..[of] such cases as Dred Scott and Plessy v. Ferguson. To do otherwise, as Lincoln said, is to submit to government by judiciary. But such a state could never be consistent with the principles of our Constitution. Indeed, it is would be utterly inconsistent with the very idea of the rule of law to which we, as a people, have always subscribed.
    
    Does Meese make a valid distinction between the Constitution and constitutional law as expressed in judicial decisions? If so, what impact does this distinction have on your views about judicial supremacy and judicial review?
    
12. Competence to Interpret Constitution. Judge Richard Posner, a Circuit Court Judge on the Seventh Circuit Court of Appeals, has written that constitutional interpretation is “the sort of thing that courts are equipped to do but Congress most emphatically not.” Is the executive branch or the legislative branch competent enough to interpret the Constitution, or is the Supreme Court the only branch fit to do this?
    
13. President Bush and the Courts. Do you agree with President Bush’s action to sign the “McCain-Feingold” campaign finance legislation even though he stated at the time that he believed portions of it were unconstitutional?
    
14. Pledge of Allegiance Case. If the Supreme Court decided that the words “under God” in the Pledge of Allegiance were unconstitutional, would this be a decision that the legislative and executive branches are constitutionally bound to follow as a precedent of general application? What steps could the legislative and executive branches take in defiance of such a Supreme Court’s ruling?