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Today at the Regent Federalist Society Chapter, I offered a remembrance of Justice Scalia, and discussed how his absence affects United States v. Texas, Fisher v. University of Texas, Zubik/Little Sisters v. Burwell, Whole Women’s Health, and Freidrichs.

This morning, I spoke to the Hampton Roads Federalist Society on the Future of the Supreme Court, and selecting the next Justice. Each time I give this lecture, it is a moving target.

In a post today, Rick Hasen writes:

And then there is the Wall Street Journal oped by Josh Blackman and Ilya Shapiro, conveniently saying that it is no big deal that there will be some 4-4 splits on the Supreme Court. So what if the contraceptive mandate is constitutional in some parts of the United States but not in others? So what if the Court cannot decide major questions about the legality of closing most abortion clinics in a state, the President’s power over immigration, and the permissibility of Environmental Protection Agency regulations to combat climate change?

[Update: Josh Blackman responds here as to the part of my post addressing him and his co-authored article entitled “Only Eight Justices? So What.” He points to another post of his on the expected 4-4 splits this term.]

A YouGov/Economist Poll that is making the rounds posed a series of question about topics such as religious liberty, civil rights, and executive power. The framing of one of the questions is bizarre.

Question 49(a) asks, “Do you approve or disapprove of the executive order which freed all slaves in the states that were in rebellion against the federal government.”

When I first read that, I did a double-take. They are describing the Emancipation Proclamation, as an executive order! I have never heard it characterized in this fashion. Really, it was a wartime order by the commander in chief. I suppose that could be deemed an executive order. And, for what it’s worth, the Emancipation Proclamation was really a two-step process. First, the slaves were seized as chattel, under the Commander in Chief’s wartime power, and then immediately emancipated. (This doesn’t fit into the rosy Lincoln hagiography). For this reason, Section 4 of the 14th Amendment eliminated the need to provide just compensation for the slaves’ owners.

“[N]either the United States nor any State shall assume or pay . . . any claim for the loss or emancipation of any slave.”

The amount was estimated at as much as $2 billion in 1868! I bet your ConLaw professor skipped over that when you studied the Emancipation Proclamation and the 14th Amendment.

The subsequent questions ask about Japanese internment, desegregating the military, restricting funding for foreign NGOs that perform abortions, establishing military tribunals and enhanced interrogation techniques, and DACA.

The lecture note are here.

This diagram illustrates the life estate.

Here is Jessica Lide’s will:

April 19, 1972

I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate.
I wish Evelyn White to have my home to live in and not to be sold.
I also leave my personal property to Sandra White Perry. My house is not to be sold.

Jessie Lide (Underscoring by testatrix)

Here is a picture of Jessica Lide’s home. Jessica Lide is on the right, Sandra White is in the middle.

 Here is the current life expectancy table. If you were born in 1984, your life expectancy is 74.56

Here is the will from the Weedon case:

Second; I give and bequeath to my beloved wife, Anna Plaxico Weedon all of my property both real, personal and mixed during her natural life and upon her death to her children, ifshe has any, and in the event she dies without issue then at the death ofmy wife Anna Plaxico Weedon I give, bequeath and devise all of my property to my grandchildren, each grandchild sharing equally with the other.

Third; In this will I have not provided for my daughters, Mrs. Florence Baker and Mrs. Delette WeedonJones, the reason is, I have given them their share ofmy property and they have not looked after and tared for me,in the latter part ofmy life.