When we cover Problem 3 in class on Monday, I want to focus our discussion on three distinct questions:
1. To what degree is there a gap between the law in theory and the law in fact? And if there is such a gap (or at least the potential for such a gap), how might that affect the Supreme Court's decision making? (Think here a bit about Marbury and Cohens, as well as the widespread reaction in the South to the Supreme Court's 2000 decision in Santa Fe.)
2. Is the Supreme Court's interpretation of the Constitution -- that is, the Court's rationale for its decisions and constructions of constitutional meaning -- the "supreme law of the land" as the Court seems to assert in Cooper v. Aaron? Or does each department of the government have the authority to interpret the Constitution for itself? In other words, was President Lincoln correct that, although he was obliged to comply with Dred Scott with respect to the parties in that case, he was not obliged to accept the Supreme Court's holding that Congress lacks the authority to regulate slavery in the territories?
3. Is it ever appropriate for actors -- and specifically the President -- simply to defy a order of the federal judiciary because he believes it is necessary to the preservation of the nation? If so, why? And how can this be squared with "the rule of law"?
Thanks, and have a great weekend.