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Houston Public Radio interviewed me about how Justice Scalia’s absence will affect several Texas-specific cases, including Whole Women’s Health, Evenwell, and Fisher.

Scalia’s death will have an impact, but most cases will remain unaffected, according to Josh Blackman, a constitutional law professor at the South Texas College of Law.

“The court resolves about 80 cases a year, and maybe less than eight or nine of them are (decided) 5-4,” Blackman explained. “It’s actually a fairly small percentage of the court’s docket where this would be a factor. Most of the court’s cases are unanimous or close to it. They’re not 5-4.” (JB: After I said this, I realized the number is usually closer to 14 or 15, but the point still holds).

…

Professor Blackman says it’s not necessary to replace Scalia right away.

“In the 1950s, 60s and 70s, we had significant periods of turnover on the Court, due to death, due to resignation, due to scandal,” Blackman said. “For example, during the 1950s, Robert Jackson, one of the great Justices, took a year off from the court to go be a Nazi prosecutor at Nuremburg. The Court was with eight Justices for a year, and they managed.”

Another big case out of Texas involves affirmative action at UT-Austin. Because she had previously been involved in the issue, Justice Elena Kagan had already recused herself from that vote. With Scalia’s death, only seven Justices will vote on the case, Fisher v. University of Texas at Austin.

“Now we’re down to seven,” said Blackman. “And a 4-3 decision is not the basis on which the court would want to make a major ruling on affirmative action.”

Blackman believes that case could also be re-argued later, or decided on very narrow grounds so its national impact would be minimized.

After Scalia is replaced, the Court could then choose to examine a different lawsuit to clarify what exactly is allowed when universities use affirmative action.

“The Texas case is very gerrymandered, it’s this 10 percent program, it’s this and that. It’s a bad case, it’s very Texas-specific,” said Blackman. “

“There are other cases brought against Harvard and the University of North Carolina, where effectively Asian students have argued that affirmative action discriminates against them because of race. Those are much more serious.”

Blackman says the Justices have until the end of the term, this summer, to decide if they want to reschedule some of these cases for later.

I was also interviewed about U.S.v. Texas, but it didn’t make the final cut.

I am publishing an Op-Ed shortly that will go into great detail about these cases, plus Friedrichs and Zubik.

 

During a speech with the nation’s governors, President Obama explained that the current debate over health care is “politicized” and “toxic,” and hopes “once I’m gone” we can have a “serious conversation.”

“Maybe once I’m gone we can go back to having a sensible conversation between Democrats and Republicans about how we should incentivize greater efficiency, better outcomes, higher quality for lower cost in our healthcare system, and if we do that, that’s going to make the biggest difference,” Obama said.

The president acknowledged the fierce debate around ObamaCare has dominated the conversation for the past several years.

“My hope is that we get into a serious conversation, maybe it will have to happen once I’m gone, because the Affordable Care Act and the debate around healthcare has gotten so politicized, so toxic, that we can’t have a sensible conversation about it,” Obama added.

This will go right into the epilogue of Unraveled.

Former Secretary of Defense Robert Gates has a fascinating interview on CSPAN. At around 35:40, he discusses the period when Obama was “the angriest with him,” concerning the decision to stay the district court’s invalidation of Don’t Ask, Don’t Tell in 2010. In September 2010, Judge Virginia A. Philips of the Central District of California found that DADT was unconstitutional in Log Cabin Republicans v. U.S.

Here is my rough transcription of his comments:

“When he was the angriest with me was over Don’t Ask, Don’t Tell, and it was over a difference in strategy about how to implement it. A federal judge in California had ruled DADT unconstitutional. That meant the law was a gonner right then, unless we got a stay of that order from the 9th Circuit Court. The President was very unwilling to seek the stay. He wanted to go ahead and get rid of DADT. I said ‘You really can’t let this be done by an act of a single judge, or an executive order. This needs to be done with the consent and support of the Congress.’ He said, ‘Alright, I will direct the Attorney to seek the stay, but you have to suspend application of the law.’ And I said, ‘Mr. President I can’t do that. There is either law or no law. You are the constitutional lawyer, but I have an obligation, I took an oath to obey the constitution, obey the law. I can’t do that.’ It was pretty tense. Finally he said, ‘I won’t make you do anything you don’t feel is right.’ But it was very clear that he as very angry with me.”

This is a remarkable story of Robert Gates lecturing Barrack Obama on the Constitution. The willingness of a cabinet official to push back against the President, which made him “very angry,” was extremely salutary for the rule of law. I fear that Gates was an outlier, and others in the cabinet were far more pliable.

The government did seek a stay, much to criticism of LGBT groups.

“We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘don’t ask, don’t tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” said Dan Woods, a lawyer representing the group. “Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic gays and lesbians are serving in our armed forces to fight for all of our constitutional rights while the government is denying them theirs.”

Mr. Obama campaigned against the “don’t ask, don’t tell” law and has asked Congress to repeal it. But his efforts have been criticized by supporters of equal rights for gay men and lesbians as too slow and insufficient, and the lawsuit has put his administration in an awkward political position.

In his defense of the stay, the President said he simply could not ignore the laws:

At a town-hall-style meeting with young adults on Thursday, Mr. Obama noted that he had been working on getting the law repealed and that a court had recently struck it down as unconstitutional, although he did not specifically address his administration’s appeal of the ruling.

“I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security — anybody should be able to serve, and they shouldn’t have to lie about who they are in order to serve. And so we are moving in the direction of ending this policy,” he said.

But, he added: “It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end, and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there. I’ve got to work to make sure that they are changed.”

The case was ultimately mooted by the congressional repeal of DADT–just as Secretary Gates predicted it ought to be.

 

H/T Adam White who sees everything

The lecture note are here.

This is Justice Oliver Wendell Holmes, Jr., who famously wrote “It is revolting to have no better reason for a rule than that it was laid down in time of Henry IV (1594-1610).It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from imitation of the past.”

This is Justice Benjamin Cardozo, who served on the New York Court of Appeals (the highest Court in New York) from 1927-1932. In 1932, Cardozo replaced Holmes on the United States Supreme Court, and would serve until 1938. Cardozo was replaced by another famous Justice, Justice Felix Frankfurter.

The feudal system began after the Norman Conquest of 1066.

(Note, in London, they do not refer to William as the Conqueror–he did not conquer London, after all!).

This diagram helps to explain the feudal structure.

This drawing represents a cleric, a knight, and a serf.

Serfs were all the way at the bottom of the pyramid.

Here are several diagrams of the feudal manor.

Here is Magna Carta–the great Charter. Forced upon King John by the Barrons at Runnymede in 1215, this document served as the basis for many of the oldest forms of constitutional freedom–including the due proces clause (then known as the law of the land clause). And there’s lots of other useless stuff. In particular, section 12 limits instances where lords can collect aid (or scutage) from tenants.

 (12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly.

Here is a restored copy of it.

This diagram represents fee simple. Like Buzz Lightyear, this estate endures to infinity, and beyond.

This diagram represents the fee simple’s restrictive cousin, the fee tail.

This drawing illustrates the livery of seisin.

William Penn performed the livery of seisin on October 27, 1682 upon his arrival in what is now New Castle, Delaware, but became part of Penn’s Woodlands (also known as Pennsylvania). There is a historical marker commemorating the event.

Near here October 27, 1682, William Penn first stepped on American soil. He proceeded to the fort and performed Livery of Seisin. “He took the key, thereof,…we did deliver unto him 1 turf with a twig upon it, a porringer with river water and soyle, in part of all.”

Here is a  photo of a statue of Penn holding a twig and turf.

This video illustrates the Livery of Seisin.

The lecture notes are here.

Scope of Federal Powers II

• Wickard v. Filburn (607-612).
• The modern debate (612).
• Hearts of Atlanta Motel (612-617).
• United States v. Lopez(617-637).

Wickard v. Filburn

This is farmer Roscoe Filburn.

This is Secretary of the Agriculture Claude Wickard.

This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.

Hearts of Atlanta Motel v. United States

The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.

During the Jim Crow era, “The Negro Motorist Green-Book” provided African Americans with a listing of hotels they could stay while traveling.

These cabins in South Carolina were advertised “For Colored.”

Katzenbach v. McClung

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.

Many restaurants only served only white patrons, such as this restaurant in Lancaster, Ohio.

And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.

And who says trolling eBay for worthless mementos from Supreme Court cases is useless. Recently, for the princely sum of $3.99 plus shipping, I purchased a matchbook from Ollie’s Barbecue–the Birmingham, Alabama establishment of Katzenbach v. McClung fame that refused to serve black customers, insisting that it did not engage in interstate commerce. Though, as the Court found, it purchase most of its meat from a butcher who had procured it from out of state.

In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant297*297 had moved in interstate commerce.

Now, thanks to the magic of eBay, I submit to the world additional proof that Ollie’s engaged in interstate commerce! Their matchbooks were manufactured by the Universal Match Corporation in Atlanta–across state lines! Read it and weep.

It is impossible to tell exactly when the matchbook was manufactured, but based on the zip code it would have been at least 1963, as that is when zip codes were introduced. The seller on ebay–an expert in matchbooks–told me “I’m guessing late 50’s to early 60’s. The paper from that time was a bit lighter on the back, but not bright white or smooth like later on.” So this is squarely in the time period in which Ollie’s would have run right into Title II of the Civil Rights Act of 1964.

The Address for “Ollie’s World’s Best Barbecue” was 515 8th Ave., So. Birmingham, Alabama 35205. Nothing is there now. They were in that location until 1999.

So here we have it. Further proof that Ollie’s did engage in interstate commerce!

The McClung’s were apparently quite religious, as their matchbook struck a Christian spark. (Oh that pun was awesome).

On the front, the Matchbook says:

“If you never know me, you’ll miss nothing, If you never know Jesus Christ, you’ll miss everything.”

The back of the matchbook quotes from 2 Chronicles 7:14 (King James Version):

 If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.

The Universal Match Corporation, as evidenced by this 1950-era promotional matchbook was located at 317 Buckhead Ave, N.E., Atlanta, Georgia.

United States v. Lopez

This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990.

I obtained these (blurry) photographs from Lopez’s high school yearbook.

The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.”

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.

Gonzales v. Raich

This is Angel Raich, the lead plaintiff in Gonzales v. Raich.

Here is a photograph of Raich using a marijuana vaporizer.

Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.

Here is Raich finding out that the Supreme Court ruled against her cause.