Many of the most important and intense political disputes in American history have come before the federal courts. From the controversy about the Second Bank of the United States reflected in McCulloch v. Maryland, to the conflict about slavery at the core of Dred Scott, to the rise of interest group litigation by civil rights, religious, environmental, and other organizations, those opposed to prevailing laws and policies have taken their grievances to court. In recent years, a new breed of political litigation has proliferated. Increasingly, the losers in legislative battles have leapt immediately into the judicial arena, challenging the constitutionality of the laws enacted over their objection. Increasingly, politicians and the entities they control have deployed litigation as another tool in the partisan arsenal. And increasingly, federal courts have become the arbiters of political disputes between the other two branches of the Federal Government, and between the Federal Government and the States.
This course will use the legal challenges to the Affordable Care Act as an initial case study of how political disputes play out in litigation, from the trial courts to the Supreme Court. We will follow the pattern of political litigation into the Trump Administration, and assess the lessons from the partisan shift in the litigation. We will consider how and why partisan disputes generate litigation and discuss the issues this litigation raises regarding the appropriate role of courts in our democratic system. For the most part, though, the perspective will be practical, as we explore the legal, strategic, and tactical choices advocates make in bringing high profile political cases, in framing the legal issues, in harnessing the rules of procedure, and in managing the political features of the case -- both offensively and defensively, and both inside and outside the courtroom. We will discuss the hurdles litigants face in seeking to strike down federal laws, the particular challenges of representing the U.S. Government in defending those laws, and the conflicting pressures that bedevil advocates on both sides of the cases. In some of our sessions, students may be asked to strategize or to argue from the perspective of the plaintiffs or the defendant in the cases.