The lecture notes are here.
The lecture notes are here.
Brown v. Board of Education
This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.
Here is Brown’s family.
(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.
Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.
This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.
Here are photographs from inside Monroe Elementary.
The white-Sumner Elementary School was much closer to where Linda lived.
The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.
Here is the oral argument sheet from decision day.
Here is Chief Justice Warren’s draft of the final opinion.
Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:
This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”
This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954. 
Here is the entire NAACP Legal Defense Fund legal team:
Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”
This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
Bolling v. Sharpe This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.
Aftermath of Brown
Palmer v. Thompson
Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.
In 1957, President Eisenhower mobilized the 101st Airborne to force Governor Orval Faubus from blocking entry to Little Rock Central High School. The “Little Rock 9” were escorted to school by military protection. As a result of efforts to oppose integration, the Supreme Court held in Cooper v. Aaron that the decisions of the Supreme law of the land, and that the states were required to comply.
In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.
I present, without any commentary, Donald Trump’s extended conversation with the Washington Post’s editorial board about NYT v. Sullivan and loosening up libel laws.
HIATT: But just – given the Supreme Court rulings on libel — Sullivan v. New York Times — how would you change the law?
TRUMP: I would just loosen them up.
RUTH MARCUS: What does that mean?
[Crosstalk]
TRUMP: I’d have to get my lawyers in to tell you, but I would loosen them up. I would loosen them up. If The Washington Post writes badly about me – and they do, they don’t write good – I mean, I don’t think I get – I read some of the stories coming up here, and I said to my staff, I said, “Why are we even wasting our time? The hatred is so enormous.” I don’t know why. I mean, I do a good job. I have thousands of employees. I work hard.
I’m not looking for bad for our country. I’m a very rational person, I’m a very sane person. I’m not looking for bad. But I read articles by you, and others. And, you know, we’ve never – we don’t know each other, and the level of hatred is so incredible, I actually said, “Why am I – why am I doing this? Why am I even here?” And I don’t expect anything to happen–
RYAN: Would that be the standard then? If there is an article that you feel has hatred, or is bad, would that be the basis for libel?
TRUMP: No, if it’s wrong. If it’s wrong.
RYAN: Wrong whether there’s malice or not?
TRUMP: I mean, The Washington Post never calls me. I never had a call, “Why – why did you do this?” or “Why did you do that?” It’s just, you know, like I’m this horrible human being. And I’m not. You know, the one thing we have in common I think we all love the country. Now, maybe we come at it from different sides, but nobody ever calls me. I mean, Bob Costa calls about a political story – he called because we’re meeting senators in a little while and congressmen, supporters – but nobody ever calls.
RYAN: The reason I keep asking this is because you’ve said three times you’ve said we are going to open up the libel laws and when we ask you what you mean you say hatred, or bad–
TRUMP: I want to make it more fair from the side where I am, because things are said that are libelous, things are said about me that are so egregious and so wrong, and right now according to the libel laws I can do almost nothing about it because I’m a well-known person you know, etc., etc.
Trump also praises the Gawker decision at some length–it had nothing to do with libel:
RYAN: Mr. Trump, you’ve mentioned many times during the campaign, in fact including this morning, instances you feel where the press has been biased or unfair or outright false in their reporting, and you’ve mentioned that you want to “open up” the libel laws. You’ve said that several times.
TRUMP: I might not have to, based on Gawker. Right?
[CROSSTALK]
TRUMP: That was an amazing—
RYAN: My question is not so much why you feel they should be open but how. What presidential powers and executive actions would you take to open up the libel laws?
TRUMP: Okay, look, I’ve had stories written about me – by your newspaper and by others – that are so false, that are written with such hatred – I’m not a bad person. I’m just doing my thing – I’m, you know, running, I want to do something that’s good. It’s not an easy thing to do. I had a nice life until I did this, you know. This is a very difficult thing to do. In fact I’ve always heard that if you’re a very successful person you can’t run for office. And I can understand that. You’ll do a hundred deals, and you’ll do one bad one or two bad ones — that’s all they read about are the bad ones. They don’t read about the one hundred and fifty great ones that you had. And even some of the ones they write that are good, they make them sound bad. You know, so I’ve always heard that. I’ve heard that if you’re successful – very successful – you just can’t run for—
Trump suggests that failure to print retractions should result in a trial:
RYAN: But how would you fix that? You’ve said that you would open up the libel laws.
TRUMP: What I would do, what I would do is I’d – well right now the libel laws, I mean I must tell you that the Hulk Hogan thing was a tremendous shock to me because – not only the amount and the fact that he had the victory — because for the most part I think libel laws almost don’t exist in this country, you know, based on, based on everything I’ve seen and watched and everything else, and I just think that if a paper writes something wrong — media, when I say paper I’m talking about media. I think that they can do a retraction if they’re wrong. They should at least try to get it right. And if they don’t do a retraction, they should, they should you know have a form of a trial. I don’t want to impede free press, by the way. The last thing I would want to do is that. But I mean I can only speak for – I probably get more – do I, I mean, you would know, do I get more publicity than any human being on the earth? Okay? I mean, [Editor’s note: Trump points at Ruth Marcus] she kills me, this one – that’s okay, nice woman.
RYAN: Would you expand, for example, prior restraints against publications?
TRUMP: No, I would just say this. All I want is fairness. So unfair. I have stories and you have no recourse, you have no recourse whatsoever because the laws are really impotent.
MARCUS: So in a better world would you be able to sue me?
TRUMP: In a better world — no — in a better world I would be able to get a retraction or a correction. Not even a retraction, a correction.
RYAN: But there’s standards like malice is required. Would you weaken that? Would you require less than malice for news organizations?
TRUMP: I would make it so that when someone writes incorrectly, yeah, I think I would get a little bit away from malice without having to get too totally away. Look, I think many of the stories about me are written badly. I don’t know if it’s malice because the people don’t know me. When Charles writes about me or when Ruth writes about me, you know, we’ve never really met. And I get these stories and they’re so angry and I actually say, I actually say, “How could they write?” – and many stories I must tell you, many stories are written that with a brief phone call could be corrected before they’re written. Nobody calls me.
Disclosure: I support Sen. Cruz’s campaign.
During President Obama’s visit to Cuba, unelected leader Raul Castro (contrary to all media accounts, he is not a President in any meaningful definition of the word), said that Guantanamo Bay must be returned to Cuba to restore relations:
He also said in order for the countries to move forward, “it will also be necessary” for the U.S. to return Guantanamo, which is based on the eastern end of Cuba.
Gitmo is where the U.S. is operating a detention center for terrorism suspects, as well as the navy base.
Mr. Castro referred to Gitmo as “illegally occupied” territory.
One key obstacle to this goal is that under current law, the President cannot remove the detainees from Guantanamo without Congress’s approval, which is not forthcoming. Over the past year, there have been murmurings that the President could assert that the National Defense Authorization Act places an unconstitutional limitation on the Commander-in-Chief’s powers (see here, here, here). The White House has (more or less) shot down the Article-II-override argument.
But now, there is an additional countervailing interest–the restoration of relations with Cuba. Citing Zivotofsky, maybe the President could argue that Guatanamo Bay is in fact illegally occupied–contrary to decades of American policy–and that it does in fact belong to Cuba. As a result, maintaining a base at Gitmo conflicts with the President’s recognition power, and thus the NDAA is unconstitutional. This is a far better argument that a straight-up Article II override position.
I blogged earlier today about the Court’s terse, five-paragraph per curiam decision in Caetano v. Massachusetts, the Second Amendment stun-gun case. Well, I called it terse. Justice Alito, joined by Justice Thomas, called it “grudging.” With good reason too. While the Per Curiam decision goes out of its way to say as little as linguistically possible to rebuke the Massachusetts Supreme Judicial Court, Justice Alito opens fire with both barrels.
First, Alito describes the sad facts of this case. Caetano was not some sort of hardened criminal, but was a battered girlfriend, who used a stun gun (commonly known as a Taser) to defend herself against her abusive boyfriend. Rather than killing the father of her children, she used the Taser to successfully ward him off. (This is why, I suspect, the record was requested). But now, after her conviction will almost certainly be upheld on remand under some sort of wishy-washy intermediate scrutiny, Caetano will forever be barred from owning any weapon for self-defense.
Second, Alito rejected the SJC’s “bordering-on-the-frivolous” argument that because stun guns were not in existence in 1791, they were beyond the scope of the Second Amendment. Specifically, he rebuked the lower court for its flawed reliance on (our favorite case of) United States v. Miller:
Instead, the court seized on language, originating inUnited States v. Miller, 307 U. S. 174 (1939), that “ ‘the sorts of weapons protected were those “in common use at the time.” ’ ” 470 Mass., at 778, 26 N. E. 3d, at 692 (quot ing Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens “who would bring the sorts of lawful weapons that they possessed at home to militia duty,” Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons “typically possessed by law-abiding citizens for lawful purposes,” id., at 625.
Third, Alito makes clear that most modern weapons–including revolvers and semi-automatic weapons–were not in existence in 1791:
While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,4 and semiautomatic pistols were not invented until near the end of that century.5 Electronic stun guns are no more exempt from the Second Amend ment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35–36 (2001)). As Heller aptly put it: “We do not inter pret constitutional rights that way.” 554 U. S., at 582.
Something about this passage, with the citation to Kyllo and saying Heller “aptly put it” makes me think Scalia wrote it. Maybe, maybe not. But I got a Scalia vibe when I read it.
Fourth, the Court makes clear that “dangerous and unusual” is conjunctive, not disjunctive.
The Supreme Judicial Court’s holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.
Several judges, including Judge Easterbrook, have tried to separate these two, arguing that even if a gun is not unusual, but is dangerous, it is not protected.
Fifth, Alito goes into depth about what makes a gun “dangerous” for purposes of the Second Amendment. It goes without saying that all guns are dangerous. They are designed to quickly and easily inflict a mortal wound. That is their intended purpose.
First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “‘dangerous and unusual weap ons’ ” that may be banned with protected “weapons . . . ‘in common use at the time’”).
To Alito, so long as an arm is protected by the Second Amendment, it makes no difference of how dangerous it is. This is an interesting formulation, that I think is helpful. Many of the recent Second Amendment decisions concerning the so-called assault weapon focuses on how much carnage an AR-15 may afflict. But under Alito’s standard, if the AR-15 is protected by the Second Amendment, its lethality is irrelevant. To bolster this point, Alito makes clear that the handgun is the most dangerous gun (in terms of number of lives taken annually), so it would be the gun that ought to be banned–Heller stands for just the opposite.
Sixth, Alito stresses that even though stun guns are not quite as popular as other types of weapons, they are still protected:
While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.
Finally, Justice Alito offers this parting blow to the Court’s “grudging” per curiam decision.
A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi est of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the conse quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self- defense. See Pet. for Cert. 14.
If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.
To circle back to a point I made earlier today, why did this opinion take so long? It is possible that Justice Scalia began writing the concurring opinion, and his death slowed the process. But even then, that doesn’t explain the GVR. Is it possible the dissent from denial of certiorari pushed the rest of the Court to GVR the case? Because the Mass. SJC basically flouted the Heller decision. Although, frankly, Judge Easterbrook’s decision in the Highland Park case did exactly the same, and dared SCOTUS to overrule him. They did not.