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The lecture notes are here.

The Reconstruction Amendments

• The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
• The Thirteenth Amendment (1266-1267).
• The Fourteenth Amendment (1267-1271).
• Slaughter-House Cases (Field, J., dissenting) (1281-1285) and (Bradley, J., dissenting (1285-1287) (Skim majority but read the dissents).
• Notes (1288-1291).
• Early Interpretation of Equal Protection (1292).
• Bradwell v. Illinois (1292-1295).
• Minor v. Happersett (1295-1301).
• Strauder v. West Virginia (1301-1306).
• Enforcement Powers (1306-1307).
• The Civil Rights Cases (1307-1318).
• Notes (1318-1322).

The Slaughter-Houses Cases

Here is a wood-cutting of the New Orleans Slaughterhouse.

Bradwell v. Illinois

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.

Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.

The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905

Minor v. Happersett

This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.

The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.

Strauder v. West Virginia

Taylor Strauder, a black man, was convicted of murder by an all-white jury. Strauder challenged his conviction because West Virginia excluded all African-Americans from the jury. The Supreme Court held that this exclusion based on race violated the Equal Protection Clause.

The Civil Rights Cases

The Grand Opera House in New York CIty, formerly known as Pike’s Opera House, was located on the Norhtwest Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.

Maguire’s Opera House, formerly known as San Francisco Hall, was a three-story theater on Washington Street between Kearny and Montgomery in San Francisco.

I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.

This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.

 

The Daily Beast published an Op-Ed by Ilya Shapiro and me focusing on how the Court’s decision in King v. Burwell may provide an alternate ground of resolving the next contraceptive mandate case the Court will (almost certainly) take. The article is based on our amicus brief in support of the Little Sisters of the Poor. Here is a sample:

Ironically, the precedent that most supports the Little Sisters’ claim is King v. Burwell, in which the Supreme Court upheld the payment of billions of dollars of subsidies in states that declined to establish health-care exchanges. But in doing so, Chief Justice John Roberts’ majority opinion rejected the Treasury Department’s interpretation of Obamacare that gave itself such awesome power. Roberts found that Congress could not have delegated this vast authority to the IRS in an area of “deep ‘economic and political significance,’” in light of the fact that the agency has “no expertise in crafting health insurance policy.”

If the nation’s tax authority lacked the power to interpret a statutory provision regarding tax credits, then—to use the chief justice’s own words—“[i]t is especially unlikely that Congress would have delegated this decision” on crafting religious accommodations to HHS, “which has no expertise in crafting” them. To quote another recent case where the Court refused to defer to an administrative agency,UARG v. EPA (2014), here the agencies are “laying claim to an extravagant statutory power” affecting fundamental religious liberty interests—a power that the ACA “is not designed to grant.”

HHS’s regulatory incompetence prevents it from forcing the Little Sisters to be complicit in what they view as sin. If executive agencies lack the interpretive authority to craft accommodations, then RFRA (and Hobby Lobby) dictate that religious employers must be exempted from the contraceptive mandate.

 

For the fourth year in a row (see 2012 and 2014), my good friend Ilya Shapiro visited the South Texas College of Law to join me in rounding up the Supreme Court term that was. My colleague Randy Kelso graciously accompanied our stampede. This year we discussed (in order) Yates, Inclusive Communities, North Carolina Dental, Obergefell, Reed, Walker, Elonis, Williams-Yulee, King, and Zivotofsky. It was a lot of fun. Thanks to the Federalist Society Chapter for hosting it.

Here’s the video:

And some pictures:

In Texas v. United States, the challenge to DAPA, the Fifth Circuit ruled against the federal government on their request for a stay on May 26, 2015 in a forty-page ruling. Virtually identical issues were presented to the court during oral argument on July 10, 2015. So where’s the decision? Ariane De Vogue writes at CNN that the “Legal fight over Obama’s immigration orders may outlast his presidency.” She quotes me in a few spots:

After losing in the district court, the administration appealed its case to a three judge panel on the U.S. Court of Appeals for the Fifth Circuit based out of New Orleans. The appeals court heard arguments in July — and both sides are getting impatient.

“Almost three months later, we are still waiting on a decision,” said Josh Blackman, an Associate Professor of Law at the South Texas College of Law. Blackman, working with the libertarian CATO Institute, has filed a brief in support of Texas and the other states who believe the President’s executive actions were an unprecedented expansion of executive power.

Blackmun [sic] supports comprehensive immigration reform, but he writes in the brief, “it is not, however, for the President to make such changes alone, in conflict with the laws passed by Congress, and in ways that go beyond constitutionally-authorized executive power.”

I didn’t say we “are getting impatient.” Indeed, quite the opposite. I suggested that the longer this process takes, the more likely this issue gets kicked until the October 2016 Term, and perhaps the entire case is mooted after the next presidential election.

“There is a distinct possibility that if this case is decided too late, there may not be enough time for the Supreme Court to argue and decide the inevitable appeal by June 2016,” said Blackman who added that if the case is kicked to the fall of 2016, the decision could come after the next presidential election.

Back in May I sketched out the timeline. If we get a decision in October or maybe November, the Court can hear the case this term without any sort of expedited briefing. But if the case is decided later in November, and/or Texas can obtain an extension of their deadline, absent expedited briefing, it will be virtually impossible to hear during this term.

 

NFIB v. Sebelius (Roberts, C.J.)

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.

King v. Burwell (Roberts, C.J.)

In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

Every time I teach NFIB, and I re-read the decision in its entirety, I’m still surprised by the ending. You’d think by now I wouldn’t be, but it still happens.