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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.]

The lecture notes are here.

Scope of Federal Powers III

• Taxing Power (637-643).
• The Spending “Power” (643-645).
• United States v. Butler (645-648).
• South Dakota v. Dole (648-656).
• New York v. United States (657-670).
• Printz v. United States (670-683)

Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.

The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.

Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.

I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.

Here is their modern-day image.

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.

And some cartoons.

South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.

Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

Sheriff Richard Mack at the Utah Capitol.

Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

More pictures of Sheriff Printz

The Wall Street Journal published an editorial by Ilya Shapiro and me analyzing all of the instances since World War II where an eight-person Court either (a) scheduled a case for reargument or (b) affirmed by a 4-4 margin. In this post, I listed all of the cases we identified. Here is the introduction:

Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.

Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.

In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.

And the conclusion:

This history shows that today’s court is more than capable of doing its work with eight justices. By far the majority of cases the Roberts court decides aren’t closely contested. Last term only 19 of the 74 decided cases went 5-4. Of those, Justice Scalia was in the majority only six times. Yet regardless of what happens in any particular case, Justice Scalia’s absence—while a huge loss for the nation—hardly hampers the functioning of the Supreme Court even if his seat remains vacant until after the election.

I would note that the title provided by the WSJ was not ours.

In the coming weeks, we will have a more detailed analysis of the specific cases where Justice Scalia was likely to be the 5th vote.

On February 17, I participated in a discussion at the National Constitution Center in Philadelphia on United States v. Texas and the Take Care Clause. Here is a description of the event:

After the House declined to pass a Senate immigration bill, President Obama used his executive authority to defer the deportation of millions of immigrants living in the U.S. illegally. Is the President’s policy unconstitutional? Join us for this debate featuring celebrated constitutional scholars Josh Blackman, Adam Cox, Cristina Rodriguez, andNicholas Quinn Rosenkranz. Jeffrey Rosen, National Constitution Center president and CEO, moderates.

It was an excellent discussion, and I encourage you to watch the video. My first comments starts around 9:30, where I offer a remembrance of Justice Scalia, and segue into his Arizona v. U.S. dissent, which augured his vote on U.S. v. Texas.