Day: February 28, 2017

What did President Trump say to Justice Kennedy?

During tonight’s Joint Address President Trump and Justice Kennedy exchanged several words. Can anyone figure out what they were saying?

As best as I can make out, Trump said:

Thank you. That’s very nice coming from you. Say hello to your boy. He’s a special guy. They love him in [New York]?

Who is Kennedy’s boy in New York? Anyone? We know that AMK invited Ivanka Trump as his guest. Perhaps there is some connection there?


Here is the video of Trump’s interaction with the Justices as he entered.

Justice Ginsburg joined Justices Alito and Thomas by staying at home. RBG attended all eight of President Obama’s joint addresses.

Update: Michelle Olsen offers a theory:


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Oral Arguments before the Texas Supreme Court in Pidgeon v. Turner, Same-Sex Couple Benefits Case

Today, I was a guest on Houston Public Radio to discuss the Texas Supreme Court’s upcoming oral argument in Pidgeon v. Turner. This is a very curious case. After a federal district court ruled in De Leon that Texas’s marriage amendment was unconstitutional, but before Obergefell was decided, the mayor of Houston decided to provide benefits to city employees in same-sex marriages. At the time, the district court’s decision was stayed by the 5th Circuit, so Texas’s marriage law was still in effect. Due to Texas’s quirky tax-payer standing laws, two residents of Houston brought suit against the Mayor, arguing that she was violating Texas’s marriage law.

The case bounced around the state courts of appeals, and finally a petition for review was filed with the Texas Supreme Court in September 2015–two months after Obergefell was decided. One year later, the petition for review was disposed. Justice Divine issued a dissent to the denial of the petition, arguing that the Court should have taken the case. After that dissent, there was a fairly aggressive public relations campaign to urge the Court to grant review. (Take a look at the docket entries from September 2016 through January 2017). Ultimately, the petition for rehearing was granted, and the case was set for oral argument tomorrow. Jonathan Mitchell, who formerly served as Texas Solicitor General, will be arguing for the taxpayers

During the segment on Houston Matters, I attempted to walk  the listeners through the fairly complicated procedural posture. I also discussed the merits of the case. Due to Justice Kennedy’s nebulous opinion in Obergefell, I don’t think this case is open-and-shut. There is certainly dicta in the opinion about “constellation of benefits,” but the core holding concerning marriage doesn’t necessarily mean any laws touching on marriage are invalid. Had the Court bothered to define a tier of scrutiny, maybe my answer would be different. But a discourse on dignity and love does not a judicial opinion make. The 9 Justices in Austin will have to make some law here, one way or the other, to resolve the case.

One issue that is worth a careful study is the impact of the 5th Circuit’s opinion of DeLeon on the Supreme Court of Texas’s decision. De Leon, unlike Obergefell, addressed the question of spousal benefits. However–and this may come as a surprise–5th Circuit decisions are not binding on the Texas Supreme Court. They are separate sovereign courts, each with a license to interpret the Constitution. We usually think of a Circuit Split as a divide between federal circuits, but it is quite feasible to have a split between the 5th Circuit and the Texas Supreme Court.

An amicus brief filed by Governor Abbott, Lieutenant Governor Patrick, and Attorney General Paxton makes this point:

The Court of Appeals also remanded for proceedings “consistent with . . . De Leon.” Parker, 477 S.W.3d at 355. This instruction was misleading, if not erroneous. The De Leon judgment is binding on the state officials who were defendants in that case and on their successors. See Ex parte Young, 209 U.S. 123 (1908) (holding that federal courts may enjoin state officials from vio- lating the federal constitution). But state courts are not enjoined by—and can- not be enjoined by—federal court orders. As the Supreme Court held in Ex parte Young: “An injunction against a state court would be a violation of the whole scheme of our government.” Id. at 162. While state courts should generally follow the U.S. Supreme Court’s judgments regarding the federal constitution, state courts are not bound by the judgment or the reasoning of the Fifth Circuit or the federal district court in De Leon. “In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.” Lockhart v. Fretwell, 506 U.S. 364, 375 (1993) (Thomas, J., concurring), cited by Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11 (1997). As one prominent law professor has explained: “Decisions of lower federal courts on issues of federal law are not binding precedents for a state court, which may properly view such precedents as no more persuasive than the views of the state courts of a differ- ent jurisdiction.” Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1231 n.495 (1986); see also David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW. U. L. REV. 759, 771 (1979) (“[Lower] federal courts are no more than coordinate with the state courts on issues of federal law.”).

This premise also came up in the post-Obergefell SSM litigation in Alabama. To grossly summarize, there were competing injunctions from the Alabama Supreme Court and the U.S. District Court for the Southern District of Alabama–the former ordered state probate judges to continue enforcing the state’s marriage law, the latter ordered the same probate judges to cease enforcing the law. Chief Justice Moore’s administrative order reminded the probate judges that the Alabama’s court was still in effect. Moore is currently being disciplined for, among other reasons, the premise that he ordered state judges to flout Obergefell. This is in error. Nothing in Obergefell addressed Alabama’s conflict between dueling injunctions from state and federal courts. (The case only concerned the marriage laws from Ohio, Michigan, Kentucky and Tennessee). Neither the Alabama Supreme Court nor the Southern District of Alabama is superior over the other with respect to interpreting the Constitution. As a practical matter, the threat of contempt and sanctions from the federal court is what keeps the probate judges in line. (See my piece with Howard Wasserman). What about the argument that Obergefell applied to all parties, everywhere? Stay tuned to my future piece, The Irrepressible Myth of Cooper v. Aaron.

You can listen to the segment here.

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Audio: The Constitutionality of the Travel Ban at the Faulkner Federalist Society

Yesterday, I spoke at the Faulkner University Federalist Society about the constitutionality of the travel ban, and more broadly the validity of the 9th Circuit’s decision in Washington v. Trump. This is a fairly concise summary of the topic, which I explain in more depth in the Texas Law Review See Also. I am still expecting a new order to drop anytime soon, and will report on it once it is released. You can listen here.

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ConLaw Class 14 – Equal Protection and Segregation

Class 14 – 2/28/17

Equal Protection and Segregation

  • Slavery, Citizenship, and the Due Process of Law (729 – 734)
  • Dred Scott v. Sandford (735 – 756).
  • Yick Wo v. Hopkins (831 – 835)
  • Plessy v. Ferguson (835 – 845).

The lecture notes are here.

Dred Sott v. Sandford

This is Chief Justice Roger Brooks Taney, the author of Dred Scott v. Sandford.


Lining the Great Hall of the Supreme Court are busts of the Chief Justices. Sandwiched between the great visages of John Marshall (the 4th Chief) and Salmon Chase (the 6th Chief) is the blank stare of Roger Brooke of Taney.


There is also a bust of Taney outside Frederick, Maryland City Hall. Vandals poured an entire bucket of red paint onto Taney’s bust. The vandalism came on the eve of a decision whether to remove the bust because some find it “offensive”:


I could not find a full, color photo of the Leutze painting. Here is the best version I could find.


This is Dred Scott.


This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854.


This is the Court’s judgment in Dred Scott, dated March 7, 1857, and seems to have been signed by Chief Justice Taney.


The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states.


This map illustrates the free and slaves states in America.


Plessy v. Ferguson

We actually do not have any confirmed photographs of Homer Plessy (there are some floating on the internet, but we aren’t sure if they are really him). Here is his grave.

Kunhardt Homer Plessy Grave

photo 2

This is  Adolph Plessy’s Birth Certificate from Orleans Parish, from 1863.

Plessy Birth Certificate


This is Judge John J. Ferguson.


Little Rock Nine Visuals - Judge Ferguson

This is an obituary for Judge Ferguson. It makes no reference of his role in the case of Plessy v. Ferguson.

Ferguson - Obituary - Positive

Here is a newspaper account from the Times Pacayune, June 9, 1892, with the headline, ” snuff-colored descendant of Ham kicks agains the ‘Jim Crow’ law.”

Yesterday afternoon at 4:15 o’clock private detecting C.C. Cain arrested from the East Louisiana [Homer] Adolph Plessy, a light mulatto, and locked him up in the Fifth Precinct station on a charge of violating section 2o of act 111 of the statute of 1890 relative to separate coaches. Detective Cain made an affidavit this morning against Plessey [sic] in the Second Recorder’s Court.

Capt. Cain, speaking of the circumstances of the arrest, stated that he and the conductor had ordered both the man from the white coach into the one set apart for colored people.  The negro refused to leave the coach, saying that he had bought his ticket and was going to ride to Covington.

Capt. Cain here told him he would either have to retire to the other coach or go to jail; to which the negro responded that he would sooner go to jail than leave the car, and he was accordingly arrested.

Previous to the arrest the conductor asked, “Are you are a colored man!”” “Yes,” was the answer. “Then,” said the conductor,” you will have to retire to the colored car.” The man refusing, Capt. Cain was invoked, and entering the car, he said to Plessy, “If you are colored you should go into the car set apart for your race. The law is plain and must be obeyed.”

The set upon which the affidavit is based is known as the “Jim Crow Car” bill, and in substance as follows.

“An act to promote the comfort of passengers on railway trains,” requiring all railway companies carrying passengers on their trains in this State to provide equal but separate accommodations for the white and colored races by providing separate coaches or compartments so as to secure separate accommodations, defining the duties of the offers of such railways, directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong, authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railways company from blame or damage that might proceed from such refusal; to prescribe penalties for all violators of this act.”

On the 25th of May last, the Supreme Court rendered an opinion in a suit entitled “State of Louisiana Ex Rel W.C. Abbott v. A.W. Hicks, Judge et al, construed the law as not applying to interstate passengers and applying only to domestic passengers.

Plessy was arraigned before Judge Moulin this morning. He was represented by J.C. Walker, Esq. who waived examination on the part of his client, and the judge committed Plessy to the Criminal District Court under a bond of $500, which was signed and Plessy released.

Kunhardt Plessy In The Wrong Coach

Plessy boarded the East Louisiana Railroad Co. train at Press and Royal streets.


Here is a photograph of the nearby West End station.


This is the order noting that Plessy’s counsel waved examination, and he was held on $500 bond. As the article suggests, Plessy posted bond, and was released.
Kunhardt Plessy Court Document 002

Here is an affidavit Plessy signed.


Judge Ferguson found that Louisiana could regulate railroad companies if they only operated in state boundaries. Plessy was ordered to pay a $300 fine.

Albion Tourgee´ represented Homer Plessy before the Supreme Court. He asked the Justices to imagine if they were black.


Here is the Supreme Court’s order affirming the decision of the Louisiana Supreme Court, noting the dissent of Justice Harlan.


And in a story almost too good to be true, descendants of Homer Plessy and John Ferguson have started a non-profit known as the Plessy and Ferguson Foundation. Here are Keith Plessy and Phoebe Ferguson. I’ve spoken on the phone to Keith Plessy.

Here is Plessy’s grand-nephew, Keith Plessy, standing at the site where his ancestor was arrested, Press and Royal streets.



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Prop1 Class 14 – Future Interests II: Executory Interests

Class 13 – 2/28/17

Future Interests II: Executory Interests

  • Notes and Questions, bottom of 283-285
  • Executory Interests, 286-292
  • Problems, 292
  • Review Problems, 292-293
  • Notes, 293-295
  • The System of Estates Chart, 296

Today we will continue covering future interests.

The lecture notes are here.

This is Henry VIII, who abolished the Statute of Uses.

He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).


 Henry would go on to be married a total of 6 times, in his pursuit of a male heir.  Not all of his wives faired so well

Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.

This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).



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