100+ Supreme Court Cases Everyone Should Know

Josh Blackman

Josh Blackman is a national thought leader on constitutional law and the United States Supreme Court. Josh’s work was quoted during two presidential impeachment trials. He has testified before Congress and advises federal and state lawmakers. Josh regularly appears on TV, including NBC, CBS, ABC, Fox, and the BBC. Josh is also a frequent guest on NPR and other syndicated radio programs. He has published commentaries in the New York Times, Wall Street Journal, Washington Post, and leading national publications.

Erwin Chemerinsky

Erwin Chemerinsky became the 13th Dean of Berkeley Law on July 1, 2017, when he joined the faculty as the Jesse H. Choper Distinguished Professor of Law.

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Episode Transcript

[Music]

REBECCA HO: Thank you everyone for being here today. My name is Rebecca Ho. I am president of Berkeley Federalist Society. Before I, before I start, I would like to thank the Public Law and Policy Program for co-hosting this event with us. Our speaker, our speaker, today, is Professor Josh Blackman, who I will refer to now as Josh.

JOSH BLACKMAN: Oh, please, I’m Josh. This is the dean. I’m Josh.

REBECCA HO: Uh, Professor Josh Blackman is the Centennial chair of Constitutional Law at South Texas College of Law, Houston. He obtained his undergraduate degree from Penn State and his law degree from the Antonin Scalia School of Law at George Mason University. After graduating from law school he clerked for judge Kim Gibson of the United States district court, for the Western District of Pennsylvania; and judge Danny Boggs of the United States court of appeals for the sixth circuit. Professor Blackman is an expert on constitutional law in the United States Supreme Court. He’s written more than five dozen law review articles that have been cited nearly a thousand times. He is a frequent guest on TV and has appeared on NBC, CBS, ABC, Fox, and the BBC. Uh, Professor Blackman is the author of three books, one of which is the topic of his talk today. His book, An Introduction to Constitutional Law, one-hundred Positive New Court Cases Everyone Should Know, was a top five bestseller on Amazon. Thank you for joining us today, Josh.

Providing commentary for today’s event is Dean Chemerinsky, who really needs no introduction. So, I will not project, I will just say thank you for, uh, joining us, today. And, with that, I will turn it over to Professor Blackman. thank you Josh

JOSH BLACKMAN: I tell my students to call me Josh. She won’t do it, but I’ll, I’ll do the same for you. Thank you so much. It’s a pleasure to be here at Berkeley. Uh, how many of you have taken constitutional law already? Okay, most of you. Okay, so you haven’t, if you haven’t taken Chemerinsky’s, take his class. He assures me that all the cases I’ll be talking about today are on the syllabus. So you’ll learn them, maybe next year. I wrote a book with Professor Randy Barnett at Georgetown, One-hundred Plus Supreme Court Cases Everyone Should Know, and we tried to pick the, the hundred most important, most significant, most noteworthy Supreme Court cases. I can’t possibly cover all on-hundred in the limited time I have today. So, I want to think about five or six cases, and I picked these cases not because they’re new and controversial, but just the opposite. They’re old and the substance of those cases aren’t really timely, today. And, I picked these cases trying to illustrate why things aren’t always the way you think they are, right? What you might think about issues today may not have been the way people thought about those issues in the past. 

So the cases I want to talk about today, and you’ll have these on the, an, exam next year, will be: Prigg v. Pennsylvania, Dred Scott v. Sanford, Cooper versus Aaron, The Civil Rights cases, Heart of Atlanta Motel, Lochner against New York, and West Coast Hotel v. Parish. These are all very famous Supreme Court cases that will either be studied  or not studied. So let’s start with Prigg, which is a case that should be taught more than it is. Um, as I’m sure you know, the Constitution was ratified with a number of so-called compromises. And a number of the compromises concerned the issue of slavery. One of the provisions governing slavery was called, The Fugitive Slave Clause. And this provision basically said if there was a person who was enslaved and traveled from one state to another, that there’ll be an obligation to return that person back to the state of origin. I’m summarizing the text. But the text was silent about how this provision will be enforced. Would it have been forced as a matter of what’s called a comedy? That’s not like, ha-ha comedy, comedy, c-o-m-i-t-y, that is the relationship between states, or was this something that gave congress and enumerated power? 24s. Shortly after the Constitution was ratified, Congress enacts what is called a Fugitive Slave Act. This act authorizes so-called slave catchers to travel between states, and retrieve so-called runaway slaves. Now, I say so-called because it wasn’t much due process going on. Very often, people were falsely accused, people were not the one they were looking for and were hauled back down river. In any event it was a dreadful law.

But, was it constitutional? We often associate the cause of slavery with the issue that was called state’s rights. That is the southern state’s favorite, state’s rights, and they opposed a strong central government, and even today conservatives are often associated with the cause of state rights, but what we saw with Pray was just the opposite. It was the southern states, it was the slave states that favored a robust federal power to enforce the Runaway Slave Act, and it was the northern states, the abolitionist states, like Pennsylvania, that try to resist that, try to resist this federal power over slavery.

Let’s talk about Pennsylvania for a minute. Pennsylvania enacts what we’ll call the personal liberty laws. The Liberty laws provide some process to people accused being runaway slaves. The local judge had to certify that this was in fact the person who must be returned down south. And then we have Prigg. Who is Prigg? Prigg was a so-called slave catcher, who targeted a person, who had left, pencil, I’m sorry, left Maryland with the consent of her owner, her name was Margaret.

Pennsylvania’s course action charged the slave attacher with kidnapping, which is what it is, bringing a person against their will. Alright, Prigg says, no, your state conviction for kidnapping is void because of the supremacy clause, because the federal law gives me the authority to return the slave. The case goes to the Supreme Court. Unanimous decision, upholding the Slave Act. Justice Story, you may have heard of his Story commentaries, wrote in a painting, their head, yes, Congress has this power. And Story endorsed a very broad conception of federal power. He relied on the notion of implied powers, the necessary and proper clause, right. These are generally doctrines that give the federal government sweeping authorities, and to this date, Priggs is one of the broadest readings of federal power ever. Even though the Slave Act says nothing, or the Slave Clause, says nothing about giving Congress power, the court accepts that argument. Alright. That wasn’t the only argument. Salmon Chase was a young abolitionist, abolitionist lawyer from Cincinnati who become Chief Justice later in life. Chase argued that, no, there is no enumerated power that protects, and so there’s no integrated power that gives Congress this authority.

Chase’s argument was rejected. So, here we’re seeing that the idea of enumerated powers isn’t just about constraining law in a conservative direction, at least for the Civil War and the Antebellum era. It was the Federal power that was harmful to the cause of freedom and fighting against slavery. Now, let me bring this to the modern era. We had a decision a few months ago, you may have heard it, called Dobbs, concerning abortion, and we’re seeing parallels to this. Can a state restrict the ability that citizens travel to other states to procure abortions? Prigg may soon become a very timely precedent. The next topic I want to talk about involves what was often called judicial supremacy, judicial supremacy.

We often take for granted that the U.S Supreme Court has the final word on certain matters. Maybe you don’t, maybe not in this room, I don’t know, but historically, at least, people took that for granted, but this isn’t gospel, right? The Constitution says that the constitution is the supreme law of the land, not the Supreme Court, not what five lawyers say, it’s the Constitution. I think we all can agree at some point, the Supreme Court errs, they make mistakes, they do something incorrect. Perhaps one of the most egregious, most erroneous decision ever, everyone might agree with this one, its Dred Scott. I think he’s not, yes, uh, this was a no pun intended, a dreadful decision, as well. Um, the Supreme Court was confronted with a fairly narrow question of law, diversity of citizenship, what does that mean? A person of Missouri can sue a person of New York and federal court, right? But to Avail yourself of this law, you must be a citizen. Was Dred Scott, an emancipated slave, a citizen? The court could have just said no, Scott was not a citizen because he was not emancipated under state law, therefore there’s a diversity jurisdiction, case dismissed. That could have been a very narrow holding, but instead, Chief Justice Taney had other ideas. Taney decided to, what does he try to resolve the slavery issue by himself in a decision the Supreme Court. And he had this lengthy, egregious opinion, explaining how people of African descent could never be citizens, even if the law of their state granted them citizenship. They could never be federal citizens. They can never have rights like free speech, the right bear arms, none of that was germane to the actual dispute with Dred Scott and Sanford, but the effect of this ruling is that people of African descent, whether free or enslaved, could never become citizens. Is that the law of the land, is that the final word? I don’t want to agree with that. An entire movement, the abolitionists move and rallied around opposing the Dred Scott decision. As a young lawyer, you’ve heard of him, Abraham Lincoln, who was an abolitionist lawyer from Illinois, and Lincoln made his national platform on opposing the Dred Scott decision. Now Lincoln didn’t argue that we need to ignore Dred Scott, or that we can just sort of flout the decision, instead he made a legal argument, Dread Scott was a dispute between Dred Scott and Sanford, two parties in the case. The federal government was not a party to that case, therefore the federal government is not found by that case. What? Did I just say that? Lincoln said you limit the dispute between Dred Scott and Samford to those two parties, and the effect is no bearing on federal policy. Lincoln rejected the notion of judicial supremacy, but the decisions of the Court bind everywhere, everyone, immediately just by virtue of five lawyers saying so.

Lincoln was elected as president as the Civil War was exploding, and Lincoln bathe is the policy of the U.S government. How? His State Department granted passports to freed slaves expressly saying that you are citizens. His administration granted citizenship to slaves to join the Union Army, and to their families, flouting the Dred Scott decision. The Emancipation Proclamation freed and slaves in large portions of the south. Lincoln’s policies were consistent with the idea that Dred Scott did not bind the federal government. The idea is, the court cannot speak for us all. A lot of you go, yeah,  go ahead, right?  Go honest Abe. 

So now let’s talk about another case. That creates some tension, which is Cooper against Aaron, 1958. you’ve all studied Brown versus Board of Education, you know what it said, that separate but equal has no place in public education, and the court later said that there should be desegregation with all deliberate speed. Remember that one, all deliberate speed? Well it wouldn’t be so fast, it wouldn’t be speedy or deliberate, instead southern states of northern states, 12, resisted the Brown decision it was called a massive resistance. You have the White Citizens Council, of the groups saying, we need to stop the Supreme Court’s oppression, this supremacy. What arguments do they use?  They arguments that sound Lincoln they said well Brown’s board was a case between Topeka Kansas and a family in Kansas, those, the lay people are bound? We are not bound by the decision, and a required district court judges, in every single city in the United States, that were subject to segregation issuing separate borders. So then what happened when the district court issued an injunction against the, you know, the governor, they would just transfer the schools to private ownership. They do everything in their power to evade the ruling in brown with the same logic as Lincoln, arguing on judicial supremacy; which brings us to Cooper against Aaron. The, the, sort of Pinnacle of the resistance happened in Little Rock Arkansas.

You had a federal district court judge who ordered integration. You had a state court judge saying, no, no, no,  integration violates the state constitution. Stop integration. So he had these officials, the school, bound by dueling orders. You had injunctions against the police department, so the governor calls out the National Guard, right, it’s like a whack-a-mole game. Each successive party that’s found by litigation is then supplanted by somebody else. Eventually President Eisenhower says, enough. Now Eisenhower didn’t really support Brown. He was sort of ambivalent about it, but he didn’t like the idea of States subverting federal authority. So Eisenhower sent to the federal troops to escort the Little Rock Nine, these nine black children into the building against an angry mob. In fact it’s very sad, the first day of school they spent in the principal’s office for fear they’d be lynched, right? It took the federal government, the presence of sending an armed guards to escort these children to go to school. The decisions of the courts didn’t enforce themselves, but then we get to the Supreme Court, right? Cooper v Aaron arises when the district court actually said, all right you know what, this is too chaotic let’s postpone integration for a bit. And the court appeal said, no, do it now.

The Supreme Court says You must integrate immediately, but then you have this other discourse. This other tangent where they said, the decision to the Supreme Court are the supreme law of the land, right? if our decisions bind you everywhere, even if you’re not part of the litigation. So you might think the idea of opposing judicial supremacy is good when Lincoln does.  When the governor of Arkansas sites Lincoln, maybe not such a good idea. So these same sort of threads appear over and over again, and now we’re seeing, I think massive resistance to the Supreme Court, again. With respect to abortion, people oppose a decision vigorously. I think we’ll see it soon Dean with affirmative action. We’ll see what happens, uh, but I think, uh, I think universities will engage in resistance to try and limit the decision to its most narrowest sense possible. You guys have prompt to run out, I guess its already out there, but it will happen soon.

Let’s talk now about enumerated powers, and, and discrimination. So you’re all familiar with the Civil Rights Act of 1964, right? this is a very famous law that, um, that prohibits segregation in places of, um, uh, you know, public accommodation; but that law was not enacted until 1964. Almost one-hundred years after the fourteenth amendment was ratified. That what you may not know is that in 1875 Congress enacts the  Civil Rights Act, and that act makes it a crime to exclude a person who plays a public accommodation on the basis of their race. And, Josh, wait a minute, why do we need a 1964 Act if they banned segregation in 1860, 1875? Well, the Supreme Court did not allow it to go enforced. It was a case call, or actually a series of cases, called the civil rights cases. The civil rights cases, uh, were a series of almost like test cases, if you will, right? Could the federal government restrict the ability of private businesses to segregate? The Supreme Court said, no, that the fourteenth amendment was not designed to give Congress this sweeping power over private businesses. Why? These businesses were not engaging in what was called state action. State action, right? The fourteenth amendment applies to a state, and a business was not a state.

Therefore Congress had no role to prevent segregation, right? But then there was a lone dissent, right? It was a lone dissent by Justice Harlan. John Marshall Harlan the first, they may have heard of Justice Harlan’s dissent in Plessy versus  Ferguson. This was another dissent that was very famous and should be given more credit than it is. Harlan argued that, yes, Congress could prohibit private segregation. He argued that these tools of exclusion were the badges and incidents of slavery. This is the phrase used, these badges of slavery, even though the thirteenth amendment says, you know, slavery nor involuntary servitude shall exist, right? What’s the difference between slavery and involuntary servitude? And, they mean the same thing, they’re kind of synonymous. Slavery is something more, right? Slavery is more than just involuntary servitude, it extended beyond; and Harlan argued that keeping a person out of a theater, out of a hotel, out of a restaurant this was a reflection of the stay of slavery that existed prior to the Civil War, and that keeping these institutions segregated was perpetuating the notion of slavery.

Now Harlan was the lone dissenter in that case, the vote was eight-to-one, he was the only one who took that position. So fast forward one-hundred years, or about seventy-nine years, and Congress is enacting the Civil Rights Act, and they have a couple choices, right? How can Congress go about prohibiting segregation? They can do so through the section five, and fourteenth amendment. But the Supreme Court says, you can’t do that, so instead they turn to another provision, which you probably studied, which was the Commerce Clause. And, the necessary and proper clause, and Congress said we’re going to ban segregation in these businesses through the Commerce Clause, right? So we have a test case now. Heart of Atlanta Motel and another one called Cat’s Back against McClung. McClung was the owner of a barbecue chain in Birmingham, Ollie’s barbecue, and so you have a hotel off an interstate in Atlanta, and the court said, well people traveling through the channels of commerce, oh, that’s commerce. Congress regulated kind of weird, calling people commerce, then yet the restaurant in Birmingham, now the restaurant Birmingham, didn’t cater to people out of state. All their customers were locals. What was the connection between his local barbecue joint and interstate commerce? The courts as well, they used ingredients from out of state. 

Their ovens were made out of state. Their their utensils are made from out of state, and you know, this might make sense to a constitutional lawyer, but the regular versus, oh, that’s not interesting, commerce, but then you’ll see a dissent by Justice Douglas and Justice Douglas says wait a minute, why are we twisting and turning to try and turn people into commerce? Right? To treat a human being as a commercial entity, which is sort of perverse, when we have a provision that says Congress could enforce laws that ban or that denied people. Use protection laws. He goes back to Harlan in the civil rights cases. He would have, I think, overruled the civil rights cases. They couldn’t quite do that, in descent, but he would have wanted to, and given Congress’ Federal enforcement power to prevent segregation, which is a much more natural fit than the Commerce Clause in the necessary Proper Clause; but, because the Supreme Court rejected in the civil rights cases, this argument of federal enforcement of power without this expanded, bloated, Commerce Clause Doctrine. And, in case you’re curious, the Supreme Court reaffirmed the civil rights cases in the United States against Morrison, uh, in the year 2000. 

Okay, the next case that I would like to talk about is Lochner. How many can say Lochner? Erwin’s like, ooh, yeah, he’s trying not to shiver when I say the name. You know Lochner is viewed as this awful case, there, because that’s what judges should not do. I’m not so critical, right? Let’s explain why Lochner has come to stand for something more than the actual case was, right? Lochner has come to stand for the way of judges using their own personal preferences to put aside the political process. So, who actually was Joseph Lochner?

Joseph Lochner was an immigrant baker in Upstate New York, in Utica, okay. Um, he made bread. He made pastries. Whatever a bakery does, but he had a very small shop. In the early 1900s, the state of New York enacts the Bake Shop Act. And the Bake Shop Act imposed a number of health restrictions on bakeries. For example, they couldn’t keep animals, like a cat or a dog, inside a bakery floor. Um, you have to have certain cleanliness standards, right? You, you have to have certain standards of health and safety. Those provisions were not controversial, but one provision of the law was, one provision, one provision of the law said that you couldn’t work more than eighty hours a week in a bakery. And, you know, we take these sort of laws for granted today. [Unintelligible], that was very controversial in the 1900s. 

What was the reason for the law? So you might say, well, you know, people work too many hours in a bakery. They may become tired, and if they’re, tired they may not, you know, do their job well. They may, you know, allow sanitary to lapse, right? There are all these sorts of issues that could arise. Let me tell you why the law was probably enacted. Um immigrant Bakers pose a threat to competition, right? Because think about how you bake bread. I want to bake bread, it takes a lot of waiting time, right? So first you have to make the dough, you have to go with the flours, let it rise, right? And you have to put in the oven and wait a little but longer so it cooks. There’s a lot of down time. So a lot of these immigrants, they would just make the dough, they’d sleep, they would put in the oven, they’d sleep, and there would be a 24-hour cycle, be working around the clock, but a lot of downtime.

The larger, more established bakeries opposed this immigrant model, because providing competition. And in large part the various guilds, favor these laws which would put out of business with immigrant bakers, because if you were an immigrant baker; you would work eighty hours a week, you couldn’t do enough to keep the ovens hot all day long, so, these were, these were the laws that you may think well, they’re trying to help the small guy. Sure, but it’s often the case that regulations are favored by the bigger businesses, because they have the ability to comply with them and to enforce them. Alright, so what happened in the Lochner case? The Supreme Court, by a five-to-four vote, Justice Rufus Peckham upheld all the other aspects of the Bakeshop Act, like cleanliness and the like except for the eighty-hour rule. And he said the eighty-hour rule lacks a sufficient connection to health and safety.

We had a dissent from Justice Harlan. I mentioned earlier, saying that, you know, this is a closer call. There is a right of, uh, economic liberty, as you might call it, but we should be more deferential. You know, Justice Holmes wrote a solo dissent in Lochner and all of them said, no, we need to be restrained. We cannot set aside these laws. It is not our role, it is not our prerogative, but really what was the Lochner case about? Again this was a small Baker who was trying to challenge a regulation that put him and his family out of business. Now over the 1910s, the 1920s, and 30s, Lochner became this movement, in fact, Teddy Roosevelt started talking about Lochner on the campaign trail. He, he, viewed Lochner in case of what judges should not do. I think he had appointed Holmes to the bench and perhaps was proud of that decision but Roosevelt made Lochner this very bad thing. 

By the time you get to the 1930s, Lochner was the sort of exemplar of what judges should not do. This was just bad. Judges should not be looking to the due process clause, right, the, the, due process clause, right, to, uh, uh, set aside laws that were enacted by the democratic process. Which brings us to the 1930s and President Roosevelt, and the new deal president. Roosevelt comes to office with this agenda. This new deal to have progressive federal laws that can help, or atleast, try to help bring the United States out of an economic tailspin. The states, likewise, are enacting various economic laws. So we have laws governing minimum wages, maximum hours, workplace conditions, laws governing protection of unions. You name it. In a very short period of time, sweeping laws were enacted that, that, regulated every facet of the economy. The state laws are starting to get challenged under the due process clause, that is, did this regulation of economic activity, uh, deprive property owners, or their, of their liberty interests under the due process? The federal laws were challenged under the Commerce Clause, that is, did Congress have this federal power? But things came to a head in 1937, right?

 After President Roosevelt’s reelection, he announced what was known as a court packing plan. the idea was, we have to add seats to the Supreme Court. Why? Well, the Justices are getting old, right? You know they, they, they’re slowing down. So for all the Justices over the age of 70, we’ll add one new one. This would give Roosevelt maybe four or five new appointments. Now, no one believed him, right? This was a pre-text, one-hundred percent. The reason why FDR favored this court expansion plan was he didn’t like the opinions to be written by some of the older, more conservative judges.

Uh, politically there’s a non-starter, right? Even his own party, the Democrats, and in Congress did not favor the court packing agenda so the idea fizzled out. But, shortly after Roosevelt decided, or Roosevelt pulled back the court-packing plan, the Supreme Court decides a case called West Coast Hotel v Parish. Elsie Parish was a chambermaid who worked at the hotel Wenatchee Washington, the Cascadian Hotel, the West Coast Hotel, it’s called Cascadia now, the West Coast Hotel in, in, Wenatchee Washington; and there was a minimum wage law and her employer refused to pay her the minimum wage, so she challenged the law. Actually [unintelligible], actually her husband challenged it, at the time she could not bring the lawsuit in her own name, so actually her husband brought the lawsuit, but, so, her husband challenged the law on behalf of the wife. Well, under the Supreme Court’s governing precedence, a minimum wage law was unconstitutional. They had struck down a similar law in the case of Atkins for his children’s hospital for a decade earlier.

But in West Coast Hotel the Supreme Court overrules Atkins v Children’s Hospital, and a few other related cases, and the court signals that we are getting out of the business of stopping laws based on the due process clause, stopping economic regulations and the base shifting process clause. Now, it’s often said that the votes in West Coast Hotel change because the court packing plan, I think, there’s pretty good evidence is not true. We have the so-called docket books as the Justice wrote down how they would vote in each case and the vote in West Coast Hotel was changed I’m sorry it was set before Roosevelt’s plan was announced. Uh, to be precise the deciding vote was in relation to Justice Owen Roberts, in relation to John Roberts, they both change your votes apparently, um, Owen Roberts had previously voted to uphold, I’m sorry, he had previously devoted to strike, or he had voted in the past to keep Atkins in place, as to allow the court to strike down economic regulations, but what was unique in those older cases is, no one asked in Atkins; however, in West hotel the court said we were being asked Atkins and we’re going to do it.

So the fact that Roberts changed his position in the past was not to the poor packing plan, it was due to the litigation, but once we get to West Coast Hotel the sort of packing here comes to an abrupt end. A number of the more conservative judges would resign for the court and only Roosevelt would make nine appointments at the court. Nine, he had them all, right, his entire bench, right, not since Washington if you had that much influence okay.

but the Roosevelt judges were sort of of the mind and we need to be about judicial restraint and then you have cases like Caroline products for the famous footnote four or the courts have grown to not set aside the political process unless perhaps certain rights are at issues or the political minorities are at issues it was a very restrained court. But, then the court gets to segregation and we get to Brown and they start perhaps deviating a little bit from the restraints of the 30s and 40s. And then we get to the 1960s, liberation, I’m in Berkeley, right, that’s where it all happened. And we have Griswold in Connecticut. And, Griswold said, well the Constitution protects a route of privacy. It’s not from the First Amendment, it was the Second Amendment from some penumbras, its very vague where I came from. We don’t really know, but the court, at that point cracked open the new deal settlement, right, the sort of repudiation of Lochnerism that lasted about thirty or so years came back and said, well Lochner’s still bad but it will protect these sort of personal rights, and Grizzle begot Roe, which begot Lawrence, which began Obergafel, and you go to the present moment. Alright, where is the current Court on these issues? 

Well, the court seems to be trending in the direction of a text and history approach, as the court likes to say, we saw text in history in the Dobbs case of abortion. We saw text in history in the Second Amendment case brewing, and we saw text in history with The Establishment Clause in Kennedy Bremerton. The court is deviating from much of the presence from the Burger court and the Warren court and using text in history to decide these matters now. Only sort of, center example and turn over to say something for a moment. The Supreme Court’s story can’t be reduced to a few headlines to read today. Its institutions have been around for two-hundred years, adding to really understand what the Court’s doing today, you need this full history. There is nothing new under the sun, I mean that’s sincerely a lot of the debates we’re having today about judicial supremacy, or an expansion, right, federal powers, due process have been had and rehabbed for one-hundred years. So, people maybe, possibly, uh, and if not, take Erwin’s classroom a lot more, thank you so much for your time and hope to get some questions.

ERWIN CHEMERINSKY: Thank you so much for coming to Berkeley, I read your book and enjoyed it beautifully; and for those who are in con law this semester, we will cover all of the cases that Josh just referred to. If you’re in con law we spent a lot of time today on the brewing case and talking about the Second Amendment. I very much enjoy Josh’s presentation. I would offer four thoughts having listened to it. One is these cases show how much the Supreme Court decisions affect all of us, often most important the intimate aspects of our lives, and how much they matter for society. Think of the case he started with Prigg versus Pennsylvania, and think of the fugitive enslaved people who are not allowed to remain free because the Supreme Court’s decision, but instead return to their owners. Think about Dred Scott versus Sanford and how it very much helped to precipitate the Civil War. Think about the Civil Rights Act cases like Katzenbach versus Mukbang, or Hear of Atlanta Motel, that opened up travel in the South to African-Americans who previously couldn’t stay at a hotel or eat in a restaurant. Or think about Dobbs which Josh mentioned, and the women who are not going to be able to exercise reproductive choice because the Supreme Court’s decision. 

Second theme that I had identified from Josh’s presentation is that the Supreme Court decisions are very much a product of who’s on the court. In their values there’s no such thing as a neutral body of constitutional law that’s out there to be discovered. The decisions of the Supreme Court are very much about the ideology and the life experience of who’s there. You certainly see that in the examples that Josh talked about. Half of the justices who are on the court when Dred Scott was decided were slave owners. I don’t know that Dred Scott would have come out the same way if it was a court, I think, I’m sure it wouldn’t have if it was a court of abolitionists. Or take the example of Lochner versus New York, as Josh points out. Lochner is part of an era from the 1890s to 1936 where the Supreme Court struck down two-hundred federal state and local laws safeguarding workers and consumers. It was a product of having a very pro-business, economically conservative Court, who’s committed to a laissez-faire economy at the same time. They’re very conservative morally, and they were willing to uphold moral regulations where they wouldn’t uphold economic regulations. I have a different perspective than the one that Josh implied with regard to Lochner, the law in Lochner said that bakers could not work more than ten hours a day or sixty hours a week. Pardon?

JOSH BLACKMAN: I think I said eighty hours, I’m sorry.

ERWIN CHEMERINSKY: No it’s okay. So what we know is that, especially at that time, being a baker was a very unhealthy profession. You refer to Justice Harlan’s concurring, dissenting opinion, where he talks about the tremendous health harms to bakers. Bakers and bakery owners didn’t have equal bargaining power. Workers and owners of factories didn’t have equal bargaining power. The legislature stepped in to impose maximum hour laws, or minimum wage laws, precisely to equalize bargaining power. The Lochner court rejected the ability of the government to equalize bargaining power. West Coast Television Parish expressly embraces that the government can regulate to equalize bargaining power. What West Coast Hotel versus Parish recognized was that the market can limit the choice of individuals every bit as much as laws of the state can limit that. And at the same time, when we talk about decisions being the product, it was on the part of the civil rights cases like Katzenbach versus McClung, part of Atlanta. We’re a product of the liberal war in Court. Who was on the court? And, but there’d be no mistake, Dobbs is the product of Donald Trump having won the 2016 election and picking three justices for the court. If Hillary Clinton won in 2016 and if she picked the three justices, no one believes that Roe versus Wade would have been overruled. It’s all about who’s on the court at the time of the decisions. 

Third theme that I would draw from having listened to Josh today is it originalism can’t protect us from bad decisions. We often need non-originalism in order to protect our society. Prigg versus Pennsylvania was an expressly originalist decision, just the story’s majority opinion said the Constitution wouldn’t have been ratified without the Fugitive Slave Clause. Dred Scott should be an embarrassment for originalists. Chief justice Tawny wrote his opinion entirely in originalist terms, and in terms that are quite offensive when you read them. On the other hand we think about the need for non-originalism, Brown versus Board of Education can’t be justified from an originalist perspective. The same Congress that voted to ratify the 14th Amendment also voted to segregate The District Columbia Public Schools. There’s no indication that Congress in 1868, were the states that ratified the 14th Amendment, meant to outlaw segregation with regard to the Commerce Clause. It’s hard to know what the original intent was, by the way, Douglas concurred. He didn’t, I’m sorry, um, that’s minor, um, um, but there were cases in the early 20th century during the Lochner, that said that Congress, under the Commerce Clause, could regulate people. Community versus the United States involved the federal law, but still in the books, very sexist, The Man Act, that makes it a crime take women across state lines for immoral purposes, and the Supreme Court upheld that is within the commerce power. I think that Douglas was right, it would be better to use section five of the Fourteenth Amendment, but at the same time – I think that it does fit within the commerce power because hotels and restaurants that discriminate did have a substantial effect on Commerce. They very much limited the ability of people of color to travel in the United States.

Um, and the fourth and final thing that I’d identify is I think the cases that Josh raises, at least some of them, ask us how much can we expect from the Supreme Court. I raised this question at the beginning of constitutional law. We’ll come back to it through the semester, I mean Cooper versus Aaron like Brown versus Board education, is to me, the court at its best stepping in to protect people with the political process. Wouldn’t I think Heart of Atlanta Motel, Katzenbach versus McClung, and upholding the Civil Rights Act, or this, but what about Dred Scott, or Prigg? Should we have expected more from the Supreme Court? There, number of years ago, Charles Ogletree was then a professor at Harvard Law School, did a program on whether or not Dred Scott was inevitable, and he got four law professors, lawyers, to argue. It was me, Akilmar, Ken Star, and John Payton, and he got Chief Justice Breyer to be the presiding Justice, and ten African-American court of appeals judges to be the panel; and my position was we should have expected more from the Supreme Court than Dred Scott. That the Supreme Court could have, and should have, by 1857, realized that slavery was a stain on our country and we should have expected them to eliminate it. I don’t think we should celebrate Justice Story. Given his opinion in Prigg versus Pennsylvania, I think for undoubtedly a brilliant man, he should have found a way to do better than he did. But, it does ask us to think about what’s realistic to expect from the Supreme Court. So, there’s really some thoughts in listening to you. Thank you.

JOSH BLACKMAN: Thank you so much. I’ll, just, a brief for joining two points, um, uh, Erwin just wrote a book on originalism which I encourage you all to read. Thank you. there’s good originalism, and then there’s some bad originalism. Um, if you want to see some bad originals, then look at chief justice Tawny. Some good originalism, look at Justice Curtis’s dissent, and Dred Scott. I’ll give you one example, Taney said when the Constitution was ratified it was unthinkable that people of African descent could vote and be citizens, and that simply wasn’t true. Some say it’s granted the franchise for free Blacks so there are complete errors in Taney’s original. Some, um, in fact, it’s sort of perverse to agree to say that Taney was an originalist. Is to agree that the constitution was pro-slavery. This is a very controversial topic. People like Frederick Douglas and Lysander spoon, l, and others, argue that the constitution was not pro-slavery, at most, maybe it was ambivalent, or was mixed. Compromise is an issue that people don’t always agree on but there’s good and bad. Slavery, I think also, Joseph’s story screwed up. It wasn’t the best we, Salmon Chase’s arguments, he, has a much better originalist account. But, I think where Erwin and I do agree, though, is that the product of the court is based on crucial philosophies, and from the beginning, when presidents were appointing judges, philosophy factored into it; and, without question, the Dobbs case is the product of Trump winning and putting three people on the court.

By the, by the timing of Faith Justice Ginsburg’s passing in September of 2020, eight weeks before the election, sealed the deal. Had she retired, I think, suggested, during the Obama years, uh, Roe would still be in the books right. So these things do matter, and Justice Breyer retired last year. People are already calling on Justice Elena Kagan to retire. We’ll see what happens there, um, but there’s a huge connection between the law and judicial philosophy. that’s all I have, uh, maybe, uh, some questions from students. Have any?

REBECCA HO: Yeah, thank you both for your insightful remarks. Yes, I have a mic, so if you have a question please raise your hand and I will give the mic to you. 

PARTICIPANT 1: Hi, my name is Mark, and, um, you’ve mentioned, you know, some of the back and forth that always happens after big decisions, um, and continues there for some time, after, between states pushing back against, um, Court decisions. I, you know, off the top of my head, we could think of, uh, States pushing back against people’s ability to vote, um, more recently, um, a state like California pushing back against the expansion of the Bruin decision, um, and so, while those are very different, I was wondering if you know what are some themes you see through history of, uh, how the legal process deals with that, um, back and forth between the states and the courts on those, uh, issues? 

JOSH BLACKMAN: Sure, I’ll go, first. In Erwin’s previously writing notes he’ll maybe, he’ll, he’ll, go and go, in a moment, um, the courts can enforce their own rulings. If the courts ever go too far ahead of where the people are there will be some backlash. In fact Justice Ginsburg was quite famous for criticizing the road decision because it went too far, too fast. Justice Alito graciously cited that over and over again, in the Dove’s case, um, we saw with desegregation, the Supreme Court, said, he said, great, with all deliberate speed. It took in some places, decades to integrate the schools because the people simply weren’t ready for it. I don’t think the Supreme Court going too far, too fast ever works. Now, uh, in a decision like Bruin, uh, you know forty-three  states had, you know, shall issue that is the right to carry outside the home. And, you have big states, a big city is like, you know, Chicago, Houston, Dallas, Phoenix, so you know it’s different from what California has, but it’s not that radical. Roe overruled the laws of forty states, overnight.

ERWIN CHEMERINSKY: Uh, in the center of the Supreme Court said a death penalty was unconstitutional. That didn’t last very long, and sort of pulled back on that, um, the affirmative action decision. I think action might be more sweeping because as it stands now, people in blue states can have access to an abortion. There’s not that much of a difficulty and people’s means, at least, can travel, but the Supreme Court comes down hard in affirmative action. You’ll see in other states, they’re going to have to really fight against what they see is infringing on diversity efforts. I think that will be an even bigger push between post-ops, foreign. I want to disagree with one thing Josh said and then try to say that you can’t look at this in a homogeneous way. There’s different contexts, um, Josh says you can’t go too far, too fast. Roe versus Wade, by my account, struck down laws in forty-six states. There are only four states that had legal abortion in 1973, and that was the law for forty-nine years. It didn’t change because the court went too far, too fast, it changed because the composition of the Supreme Court changed. I could certainly give other instances why I believe the Supreme Court made major changes. Think of the decisions in the early 1960s that imposed one person, one vote. That required that all legislative districts be about the same size. A dramatic change, and it worked. it was implemented. It mattered. I think we’ve got to be careful, though, about thinking of pushing back, meaning, the same thing in all instances. In some areas it’s the Supreme Court saying, this is left to the political process and states can do what they want in that instance. The states aren’t pushing back, so when the voters of Kansas protect the right to abortion there, or the voters in Michigan do that, or the voters in California do that, in November, that to me isn’t pushing back, that’s the Supreme Court saying this is left of the political process, do what you will.

And, those States went in one direction in West Virginia, and Indiana, and Oklahoma went in a different direction. There’s a whole second category of things where the Supreme Court says that the government can’t do something and then states try to find, well, what can they do consistent with that. So, the Supreme Court finds the right to abortion, and Roe and States, kept trying ways to regulate abortion consistent with Roe versus Wade, and we talk about so many cases that the Supreme Court decided involving particular kinds of abortion regulations. Some being upheld, some being struck down, um, I don’t see that as, imp, anything impermissible. I’m seeing things going on now, with regard to the Second Amendment, the Supreme Court in Heller and more recently in Broad, have limited what states can do, so, states are trying all sorts of ways consistent with the decision they hope to get around it, um, when the Supreme Court as everyone expects, overrules the affirmative action cases, I expect colleges and universities will try to come up with ways consistent with it, to achieve diversity. Finding proxies too, for race, to achieve diversity. And then there’s a whole different kind of pushing back, and that’s the massive resistance that occurred in the south after Brown versus Board of Education. and that’s, to me, a kind, different than the other two categories.

Um, and there’s probably more categories than this, but when you look at what the southern states did try to do everything they could to obstruct desegregation. Closing public school systems, um, calling out troops to block the integration of schools. That to me is a very different kind of pushing back.

PARTICIPANT 2: Hi, um, I was hoping that you could both comment, um, on any pending cases, or cases that might have been argued recently but opinions haven’t been issued, uh, that you feel are the most consequential and, um, if you could just kind of weigh out what the the stakes are? I think that would be really interesting.

JOSH BLACKMAN: Sure, um, I’ll give a few examples. Um, we’ve already talked about the two affirmative action cases that were argued on October 31st. Students for Fair Admission versus University of North Carolina. The Students for Fair Admission versus Harvard College, it’s significant that they involve both public schools, under the Constitution, and private schools. Under the 1964 Civil Rights Act, we saw here in California, the devastating effects, in terms of diversity, of eliminating affirmative action. If you look at 1995, the year before prop 209, in 1998, two years after the number of black and latinx freshmen at UCLA and at Berkeley fell, by chance, took UCLA nineteen years to the year 2015 to get back to its 1996 levels of diversity. If this law school, in the classroom where you’re sitting, because I don’t think this classroom has changed in all these years, in the class that entered the year after 209, there’s only one black student in the 1L class. And that was somebody who had been admitted previously and deferred. Um, there are ways to achieve diversity without affirmative action, but it takes concerted efforts, and a lot of trial and error, and I think we’re going to see that nationally. And, I’m hoping that other states will learn from the California, the Michigan, and the Washington experience. The association of American law school is going to do a big conference on July 10th for Deans and admissions officials about how to achieve diversity without being able to engage in affirmative action.

Um, another case, if you ask me, what case on the docket I am most afraid of, it’s a case called Moore versus Harper that was argued on December 7th. It involves the so-called independent state legislature theory. North Carolina is basically a purple state. It went for Obama in 2008 and then for the Republican candidates, Trump beat Biden in 2020 by 1.35 percent. Democrat and Republican voter registration is almost even. The Republican legislature Drew election districts to give Republicans control of 10 of 14 seats in the House of Representatives, from North Carolina. The North Carolina Supreme Court found that they had violated the North Carolina state constitution. They had an independent commission draw districts in a nonpartisan way. Not surprisingly, North Carolina elected seven Democrats, and seven Republicans in November 2022, to the house. The leaders of the Republican North Carolina legislature sought Supreme Court review and said Article 1 Section 4 says that the legislature of the state shall set the time, place, and manner of elections. That means that the courts can’t overrule what the legislature does. If the Supreme Court accepts that, and I hope they won’t, then there’ll be no remedy in any Court, federal or state, no matter how egregious the partisan germ entering. 

ERWIN CHEMERINSKY: Then I think it’s likely that independent districting commissions like in California will be unconstitutional because they’re not the legislature of the state. It would mean that no matter how extreme the violations of the Constitution, state Courts would be powerless to be able to stop what the legislature is doing. And, there’s further dire implications. There’s another provision in the Constitution, it’s in order to do with section one, that says the legislature, the state, should allocate the electors of the state. If the court buys the independent state legislature theory, does that mean that a state legislature could give its electors to the candidate that lost the popular vote? Could a republican legislature in Wisconsin, or Georgia, or Arizona, give the electors, and electoral college to the Republican candidate, even if the Democrat won the popular vote? And, what if that decides the election? I think our democracy could not survive that happening, and that’s not hyperbole.

One more case, um, 303 Creative versus Atlantis, argued on Monday December 5th. Lori Smith runs a business in Colorado designing websites. She wants to design websites for weddings but she says because of her religious beliefs she won’t design websites for same-sex weddings. Colorado has a law that prevents business establishments from discriminating based on race, sex, religion, sexual orientation. Smith brought a lawsuit in federal court for declaratory judgment, that will violate her first amendment rights to free speech, and suppress her religion. To apply that law to her the federal district court in the tenth circuit ruled against her. The tenth circuit saying there’s a compelling government interest in stopping discrimination based on sex orientation, and that justifies whatever infringement of our first amendment rights. The Supreme Court granted review from the oral arguments, I think the Supreme Court’s going to rule in favor of Lori Smith. The Court’s focusing just on the free speech aspect of this. They didn’t take cert on the religion question, but once the court says that people can discriminate in the name of free speech or free religion, what’s the stopping point? What about the landlord who doesn’t want to rent property to an interracial couple because of his religious beliefs? Or the employer says it’s against my religious beliefs that men and women in the same workplace so I won’t hire women? There’s always a tension between Liberty and equality. Any law that prohibits discrimination, limits the freedom to discriminate. The Supreme Court, including in cases like Heart of Atlanta Motel and Katz versus McClung, who said that the vetting discrimination is more important than protecting the freedom to discriminate. Once the Supreme Court says, for the first time in decades, that there’s a freedom to discriminate, I don’t know what the stopping point will be.

JOSH BLACKMAN: Yeah, let me, more questions, do you want to, if other cases, uh, those are going to mention. One other fun case that you actually may not care about, and I’ll get to you in a second, is actually a case called Norfolk Southern. Uh, where if you’ve taken civil procedure, yet never personal jurisdiction, right, Pennsylvania has a weird law that says, uh, if you do business in the state you must consent to personal jurisdiction. So you have a tort that happened, I think it was based in Virginia, Ohio, and the citizens are Virginia, Ohio, citizens, they filed student Pennsylvania because the trial courts are more favorable. How can your personal jurisdiction, the Supreme Court may decide, for the first time, whether a state can require consent for jurisdiction consistent with the due process clause. If this works, the good people in Sacramento would likely follow suit and any business that does business in California, but to consent to personal jurisdiction, and the trial lawyers will be happy. Um, again this is not a particularly sexy case. It’s not very attractive, but this could be a huge implication for business, which actually, uh, the, the, chamber is freaking out over this case. This is a huge cases, amicator is top to bottom. So he had Carter Phillips representing the railroad, you had actually Keller representing the, the, pla, the tour person, the victim of the tort. Uh, so this is a huge case. Just keep an eye on it because this one will be in your superbooks next year, I promise, okay.

PARTICIPANT 3: Thank you Dean and Professor. I was wondering if you could both comment on Brackeen v Haaland, and just what will happen, I guess, in your view after that decision comes down?

JOSH BLACKMAN: Right, so this is a very complicated case involving what’s called ICWA, the Indian Child Welfare act. Um, it’s very complicated, and I don’t think I can even do justice in a few moments, uh, but part of it will affect tribal authority, and the power of tribal authority to provide care for their, uh, or not even, their own members. But people who might be related to their own members. There’s also the Indian Commerce Clause lurking in the background. The power of the federal government to regulate it, their State’s sovereignty issues, uh, to what extent can Congress intrude on state domestic law? Usually domestic law is considered an area that long to itself, um, the fifth circuit issued a decision in this case, that was so fractured and splintered, it makes almost no sense. I don’t know what the courts can do, here, Erwin. Do you have any predictions? 

ERWIN CHEMERINSKY: I agree with all of that. I would just say that I agree with everything that Josh just said. One, is there’s an issue in this, in several other cases, this term about when state governments have standing to sue and it’s interesting that I can identify at least four cases on the dock at this term where that comes up; and, this is one of them. The other is the Indian Child Welfare Act gives a preference for Native American families when it comes to the adoption of Native American children. It’s a response to the tragic history of the government breaking up Native American families and moving Native American children to white families. I think this is going to turn on whether the court proceeds being Native American as a racial status or is a political status. If it is seen as a racial status then the Court’s going to think of this through the prism of the affirmative action cases, and so you can’t give preference on the base of race to Native Americans, but if you see Native Americans as sovereigns and being a part of a tribe, it’s a political status. Then it’s quite different. 

The University of California has taken the position that being Native American is a political status, not a racial status, and therefore it’s not covered by prop 209. That’s interesting. I didn’t know that, um, yeah the general counsel. So we, well, as we can’t have scholarships on the basis of race, we have scholarships between Native Americans because it’s on the basis if you’re an enrolled tribal number, because it’s deemed a political status. My prediction is four justices are going to say it’s a political status. Gorsuch said America Kagan and Jackson. Will they get a fifth vote and I don’t know the answer to that question. They don’t even tell us more. I have no idea about the oral argument. That case was so messy and it was long. Oh, by the way, just know the arguments are supposed to be an hour in length. This year they’re going 90 minutes. Two hours. Dreadful. The oral arguments in there from the exercises were five and a half hours, all day, and the independent state legislature, and if somebody’s argued many times in the Supreme Court. I have very mixed feelings on the one hand as a lawyer, I’d rather have more time to answer questions, on the other hand there is such a relief when you’re up there and the red light comes on. Yeah you’re over, you’re done, you’re done, sit down.

REBECCA HO: I think that concludes our time thank you so much both of you

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