Talks with Authors: An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

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Chayila Kleist: Hello, and welcome to The Federalist Society's webinar call. Today, December 16th, 2022, we host a talks with authors on "Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know." My name is Chayila Kleist. I'm an assistant director of practice groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call as The Federalist Society takes no position on any particular legal or public policy issues. In the interest of time we'll keep our introductions brief, but if you'd like to know more about either of our guests, you can access their impressive and full bios at FedSoc.org.

 

Today, we're fortunate to have with us Professor Josh Blackman who's a professor of law at the South Texas College of Law in Houston. He holds the centennial chair of constitutional law and he's also an adjunct scholar at the Cato Institute. Professor Blackman has testified before Congress and advises federal and state lawmakers. He regularly appears on TV including NBC, CBS, ABC, FOX, and the BBC. Professor Blackman is also a frequent guest on NPR and other syndicated radio programs. He's published commentaries in the New York Times, Wall Street Journal, Washington Post, and leading national publications. Additionally, and perhaps most pertinent to this event, he's a coauthor and editor with Professor Barnett of An Introduction to Constitutional Law: 100+ Supreme Court cases Everyone Should Know. I'll leave it to him to introduce Professor Barnett.

 

One last note. Throughout the rest of the panel, if you have any questions, please submit them through the question and answer feature so our speakers will have access to them for when we get to that portion of today's webinar. With that, thank you for being with us today. The floor is yours.

 

Prof. Josh Blackman:  He brought a prop. My girls are at school now. That's not fair. Well, I see two Barnetts on the screen. So who do we have? We have Professor Randy Barnett and who's joining us, sir?

 

Prof. Randy Barnett:  This is Selma Jane Barnett, the most recent granddaughter.

 

Prof. Josh Blackman:  Well, that's just perfect.

 

Prof. Randy Barnett:  Buy our book. The baby wants you to buy our book.

 

Prof. Josh Blackman:  This is totally shameless.

 

Prof. Randy Barnett:  It's really important.

 

Prof. Josh Blackman:  So let's talk about Dobbs -- no. I'm just kidding. That wasn't planned. Thank you all for joining us. Randy and I are very happy to have you here. Our purpose is to hawk our book but also to teach about some of the most important Supreme Court cases of all time. So I shall do the obligatory plug. We have not one but two versions of the book. The first version is the paperback. Now, you may have a version that has a first edition. This is the second edition. There's a plus next to it. And we added a number of new cases from this past term including Dobbs, Bruen, the Coach Kennedy case, and a few others. So it's really up to date -- brand new.

 

The even cooler one is this one which is an illustrated edition coffee table book hardcover. The book has photographs on every page which illustrates all the books -- it's a very good Christmas present. Now. I wish I could say it will be arriving by Christmas but due to the supply chain shortages. It will be arriving shortly after Christmas. But you can order it now and it will be a gift you will treasure forever. These are the numbers from Griswold if you will. Enough about that. We will be offering a free signed copy to those who have attended this call today. We'll have a drawing later. So if you're here and -- Chayila, what do they have to do to sign up for the drawing? Message Chayila and you'll be entered into a drawing to win a free signed copy.

 

So our goal today is to talk about four of the most important Supreme Court cases, show you some of the photographs from those cases, and play some of the video clips from our video library from those cases. So first off, let me just run through a few very cool spreads from our presentation. And one sec. Let me let this one run. Okay. So the first case that we want to talk about -- oh, we'll have Q&A as well. So please put your comments into the question board for later. Okay. So here's the cover. Very good.

 

The first case we'll be talking about is Gonzales v. Raich. This was a case that Randy argued before the Supreme Court. Long before medicinal marijuana was cool, Randy was trying to use federalism and the commerce clause to get the Supreme Court to halt the enforcement of a federal gun control -- I'm sorry -- a federal controlled substance law. The second case we talking about is more obscure but also very relevant -- Bradwell v. Illinois. Here we had a woman from Chicago, Myra Bradwell, who wanted to become an attorney but at the time, the state of Illinois said, "No. No. No. Women cannot be lawyers." She asserted that the privileges or immunities clause of the Fourteenth Amendment gives her the right to become an attorney and pursue that livelihood.

 

The third edition is the most recent one -- is Dobbs v. Jackson Women's Health Organization. And this case held that the Fourteenth Amendment does not protect a right to terminate a pregnancy -- as Randy holds his beautiful granddaughter. They're going to cancel us in five seconds. The last case we'll talk about is New York State Rifle & Pistol Association v. Bruen. This was a Second Amendment case -- it was a Second Amendment case from this past term and the Court held the right to bear arms extends outside the home. But even more significant from an originalist perspective is that the Court allowed for originalism to play a key role in deciding the scope of this amendment. Enough about that.

 

Let me play a clip of Randy arguing the Raich case which is a very important decision that I'm sure his granddaughter will be hearing about for the rest of her life. We didn't script any of this by the way. All right. So let's play a clip. This is Randy having the argument with Justice Souter.

 

"Justice David Souter suggested that whether or not an activity was economic depends on whether it had an economic effect on the national economy. He then equated the economic effect on the interstate market of Angel and Diane's homegrown marijuana with that of Roscoe Filburn's home grown weed. If it would be a large market effect, it makes no more sense to call this non-economic than Filburn's use. To this I responded that Lopez and Morrison stood for the proposition that the mere fact that activities may have an economic effect on the market does not make them economic activities. To identify whether an activity is economic, you have to look to the activity itself. An economic activity is one that's associated with sale, exchange, barter, the production of things for sale and exchange barter. So for example, prostitution is an economic activity.  Marital relations is not an economic activity. We could be talking about virtually the same act --"

 

As he's holding a baby.

 

"We don't say that because there is a market for prostitution that therefore everything that has an effect on the market because it substitutes for what can be obtained in the market is a self-economic activity. After this exchange, the justices dropped the market substitute conception of economic activity."

 

All right. Enough of that. So Randy, let's talk about Raich for a bit. How was your experience in Raich and what do you think students should learn from it today, almost 15 years later?

 

Prof. Randy Barnett:  Well, first of all, Selma is very excited about the new book, and it's why she demanded that she be on this program. This is the first video program of many that she will be on but this is her first video appearance anywhere. But she now has asked to leave the program so that I can talk. So bye.

 

Prof. Josh Blackman:  Bye, Selma. Bye sweetheart.

 

Prof. Randy Barnett:  Well, as you might imagine, the Raich case is maybe not my favorite case to teach because I have to relive the outcome of that case every time I teach it. But one of the things that our book brings home is the nature of oral argument. One of the reasons why we picked this clip is because it shows that we illustrate the book with clips from oral arguments, clips from hand down statements, as well as audio. Josh, what else do you want me to say about the Raich case -- about teaching the Raich case?

 

Prof. Josh Blackman:  Maybe talk about how this case came about. It's a really good origin story.

 

Prof. Randy Barnett:  Right. Well, I had been on the faculty at Boston University, and I was well known for my scholarship on the Ninth Amendment.  That was pretty much all I had done at that point. And Rob Raich, who ultimately was married to Angel Raich, asked me if I would participate -- be willing to help provide a brief on the Ninth Amendment for the district court on a different case -- the Oakland Cannabis Buyer's Cooperative case. And since that was a federal case, the Ninth Amendment actually did apply, and I agreed to do that. It was actually a commerce clause case first and foremost but Justice Breyer's brother, Charles Breyer, had asked the parties to brief the Ninth Amendment. They went around the country to find someone who knew about the Ninth Amendment, and they found me. So that attached me to the case.

 

Ultimately, Judge Breyer lost interest in the Ninth Amendment as all judges inevitably do and we were left with this commerce clause challenge but the problem with that challenge was that in the Oakland Cannabis Buyer's Cooperative money and marijuana were changing hands which is not only economic activity it is also the original meaning of commerce. So it was intrastate commerce, but it was commerce. And Rob asked me if I thought it would be a good idea if we could bring a case in which there was no economic activity whatsoever, and I said sure. He asked me if I would lead up that team, and I said sure, and he said he had a couple of plaintiffs in mind. One of whom is the woman he had just married, Angel Raich, and the other is Diane Monson. And so he and I and a third lawyer who was representing Diane Monson became the team that brought the Raich case which ultimately ended up in the Supreme Court.

 

Prof. Josh Blackman:  Awesome. All right. Let's now move to a second case that Randy will talk about which is Bradwell v. Illinois. It's not a well-known case but it involves a woman who sought a constitutional right to become an attorney in the 1860s.

 

"Was not abridged by the exclusion of women from the practice of law. For this reason, Justice Bradley wrote a now notorious concurring opinion, joined by Justices Field and Swayne, in which he attempted to differentiate women from men. ‘The civil law as well as nature herself,’ he wrote, ‘has always recognized a wide difference in the respective spheres and destinies of man and woman. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.’ He noted that under the laws of coverture, a wife has no separate legal identity from her husband. Therefore ‘a married woman is incapable without her husband's consent of making contracts which shall be binding or given.’ This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor."

 

So Randy, why is Bradwell v. Illinois such an important case that no one's ever heard of?

 

Prof. Randy Barnett:  Yeah. It's very interesting. That case is part of our video on the Slaughter-House Cases. Everybody who goes to law school eventually hears about the Slaughter-House Cases and that is the case that was decided in 1873 -- five years after the enactment of the Fourteenth Amendment -- that essentially gutted the privileges or immunities clause which was the heart of the Fourteenth Amendment thereby completely distorting the Fourteenth Amendment from that day until this day. There's an overwhelming scholarly consensus that the Slaughter-House Cases were wrongly decided though the Courts have uniformly refused -- even the conservative originalist justices other than Justice Thomas -- have refused to reconsider the Slaughter-House Cases and revive the privilege or immunities clause.

 

What many people don't know is that the day after the Slaughter-House Case was handed down was handed down this other case Bradwell v. Illinois which also involved the invocation of the privileges or immunities clause. This time of a woman who sought to practice law in the state of Illinois and who was barred from doing so on the basis of a Supreme Court rule that barred women from the practice of law. She also asserted a privileges or immunities claim. And for the majority in Bradwell it was an easy case because -- for the majority in Slaughter-House Cases, the five justices who said there was no right to pursue a lawful occupation of the butchers in New Orleans it was easy for them to say, "And likewise, there is no right to pursue a lawful occupation for women practicing law." It just is outside the scope of the Fourteenth Amendment according to them.

 

But what about the four dissenters in the Slaughter-House Cases? Justice Field, Justice Bradley, Justice Salmon Chase who didn't write an opinion in any other case. I'll get to that in a minute. Well, Justice Bradley -- who dissented in the Slaughter-House Case -- the next day he concurred in the result of Bradwell and he did so on the basis of this very famously misogynist opinion which distinguished between the natural abilities and functions of women versus men and the legal status of women versus the legal status of men. Married women could not enter contracts on their own behalf. How could they be lawyers?

 

And that opinion has achieved a great deal of prominence as an awful tale about how the Fourteenth Amendment does not protect women. That's what a lot of progressives say about the original meaning of the Fourteenth Amendment. And Justice Bradley's opinion therefore -- the reason why Justice Bradley had to write that concurring opinion is that he believed there was a right to pursue a lawful occupation that was a privilege of citizenship as did the other three dissenters in the Slaughter-House Cases. And yet, he had to explain why it was rational or reasonable that women be denied access to the practice of law given their nature.

 

What was so interesting about this is there was a dissenter in Bradwell -- a sole dissenter and that is Chief Justice Salmon Chase who has now become one of my great heroes. And Salmon Chase in a very poignant line of a Supreme Court reporter says, "The chief justice dissents from the decision and all opinions in the case." Meaning he dissents not only from Justice Miller's majority opinion, but he also dissents from Justice Bradley's concurring opinion. This means that Chief Justice Salmon Chase believed that there was a privilege or immunity that included the right to pursue a lawful occupation -- as he had said so in Slaughter-House -- and secondly, that it also protects women from irrational discrimination. And he believes that this was irrational discrimination.

 

 

And that shows that the original meaning of the Fourteenth Amendment was susceptible to a reading that would protect women right at the moment that that case was decided. And so it's a very interesting case to be paired with Slaughter-House given that it was decided the day after. Why did Chief Justice Salmon Chase not write an opinion? He was mortally ill at the time. He'd suffered a series of strokes, and in fact, he passed away three weeks after the decisions were announced.

 

Prof. Josh Blackman:  So there are two questions on Bradwell. I'll put them up now. Why did Bradwell bring privileges or immunities and not equal protection?

 

Prof. Randy Barnett:  Well, equal protection there, as I explain in a different book with Evan Bernick The Original Meaning of the Fourteenth Amendment, it was not about discriminatory laws. It was about the failure of the government to protect people equally. It was primarily about enforcement of the laws but it was also about a fair adjudication of the laws. So it was really about a failure of the fundamental duty of government to protect its citizens. And that was a very big problem because that was one of the biggest problems facing the freedmen in the south is that law enforcement was not extending to them the protection of the laws.

 

The privilege or immunities clause is what was regulating the content of state statutes primarily which says, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Now, this bars the absolute deprivation of everybody's privilege or immunity. So if the state says there is no right to pursue a lawful occupation of everybody, well that's barred. But it also bars the discriminatory provision of privilege and immunity. So if it says "Well, men can pursue a lawful occupation but women cannot," that's also a violation of the privilege and immunities clause which was widely understood by those in Congress to be unconstitutional or I should say protected by the Fourteenth Amendment but the Supreme Court ultimately in an act of what I believe to be living constitutionalism, negates it because they thought that it gave too much power to the federal government and they liked the federalism that existed before the Civil War.

 

Prof. Josh Blackman:  Another question and I'll take this one is "Why if the husband and wife was a legal entity," this was under coverture, "why couldn't Bradwell practice law under her husband's license if he was an attorney?" One of the issues that came up was actually about contracting and about one of the reasons why they need to have the ability to contract was to have an attorney client relationship. And under coverture, women had no rights to contract at all. So I think part of the reason why -- she could be an apprentice, so to speak, of her husband but couldn't be the sole lawyer.

 

Prof. Randy Barnett:  And she was a very distinguished member of the legal community. She was the editor of an Illinois state lawyers magazine. So she was not a slouch. Of course, one of the secrets -- hidden facts of this case which I don't even believe makes it into our book. It might have. I think it made it into our case book. And that is the fact that by the time Bradwell was heard by the Court, Illinois had already admitted a woman to practice law. The case was probably moot. We don't know why the Court didn't know that, why they weren't told that, but we even know the name of the woman who was admitted to practice law. So this was kind of a historical blip but it's still worth talking about because it's worth illustrating a, the original meaning of the privilege or immunities clause and b, it is actually a distortion of the original meaning to say that it does not protect the rights of women.

 

Prof. Josh Blackman:  All right. Let's move to case number three, which is Dobbs v. Jackson Women's Health. This was the big abortion case last term. And I want to play some clips from oral argument where Justice Sotomayor and Breyer get very concerned about the Court's legitimacy.

 

"There was a sustained political movement to reverse Roe. During oral argument, Justice Breyer worried that it was a super case I guess, a rare case, a watershed case. That people will say no you're just political. You're just politicians. He warned that such politicization will as an American institution. Justice Sotomayor stated the issue more bluntly. Sotomayor remarked the sponsors of the Mississippi law supported it because we have new justices on our Supreme Court. Sotomayor asked will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts? She added if people actually believe that it's all political, how will we survive? The Dobbs majority rejected this conception of legitimacy. Justice Alito contented that ‘Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision. The Casey pluralities understanding of legitimacy,’ Alito suggested, ‘Went beyond this Court's role in our constitutional system.’"

 

All right.

 

Prof. Randy Barnett:  Let me remind any of the viewers that just tuned in and may have tuned in late that the reason we're playing you these videos is that Josh and I spent two years and over a hundred thousand dollars to make these videos to illustrate this book. And if you buy a copy of the book, as you'll see in this corner, you get access to the videos. And so when you buy this book, you're not only buying a book, you're buying an audio video series that both you can use, that your kids can use who may be students in high school or college, and your friends and neighbors can use.

 

Prof. Josh Blackman:  This is the worst infomercial in FedSoc history. But to Randy's point, the reason why we produced these videos is to bring the Court's arguments and opinion hand down to general people. If you ever actually listen to the Supreme Court arguments, it might be an hour -- nowadays more like two hours -- and they're very disjointed. There might be a question here that connects to a question there and maybe an hour later they'll come back to it. We slice it. We take questions throughout the arguments, put it into a single cohesive discourse so it actually makes sense. In fact, you'll often hear my voice or Randy's voice bridging a few words that are missing so the question actually reads better. We also have the opinion announcement audio. That's when they actually announce the opinion in their own words. So it's great hearing Justice Scalia and Chief Justice Rehnquist read an opinion in their great voice. It's a cool part.

 

Prof. Randy Barnett:  Yeah. You get to hear the opinions in the justice's own words. So even though Josh and I do narrate each of these videos -- and we don't narrate the same ones. It's either one or the other of us who are narrating the videos. To the extent possible, we like the historical actors to speak for themselves to the extent that we can technologically accomplish that. There will be less talking by us and more talking by other people.

 

Prof. Josh Blackman:  Right. So the Dobbs case though is significant because I think it changes the way we talk about constitutional law. Now, I've been teaching con law for about a decade -- Randy for more years than that. But con law always had this arc to it. You start in the 1800s, you go through the 19th century, then you get the Lochner era, and then you have the new deal, then you have the Warren Court, and then you have Roe. It's like whoa what happened? And then you have efforts to try to reverse Roe. Then you get Casey. And it sticks around. And then it follows a trajectory because you have the Lawrence case, and you have Obergefell, and Windsor, a few of the other decisions, but it also just follows the same trajectory. And we always taught -- at least I did -- that these cases are probably not going anywhere. That Roe happened, Casey was the shot, they had the votes, and they lost the votes because Kennedy, O'Connor, and Souter decided to write this joint opinion.

 

But now that narrative falls apart. And once you destabilize Casey, then you ask, what other areas of constitutional law might be destabilized as well? And this is a huge open issue. So we wrote this essay, this book, in a time of flux. By the way, our book was to do the press the first week in July of 2022. So I had about a week to write all these essays. It was a very compressed period. It was not pleasant, but we got it done in a short order, but so much is just uncertain about where this case law is headed and it's a very good teaching moment. We hope students of all ages, in fact even in college students, high school students, learn these cases and see that the arc of constitutional law is not fixed. It does fluctuate over time. All right. Anything else on Dobbs before I do Bruen?

 

Prof. Randy Barnett:  I'm not seeing anything.

 

Prof. Josh Blackman:  No. It was a question. Do you have anything to add on Dobbs before we go to Bruen?

 

Prof. Randy Barnett:  Oh, for me. Well, I guess, what do you think about the form of reasoning that Bruen -- we just did Dobbs, right? So what -- the thing about Dobbs is that it's widely criticized as an originalist case as the fruit of originalism, and it may actually have reached an originalist result. But one of the things that we try to make clear is that it was not using originalist reasoning. It is a substantive due process case and what the book tells is the arc of the theory of substantive due process and how the conservative justices developed a theory of substantive due process really beginning with Bowers v. Hardwick, but since that case was reversed, it's Washington v. Glucksberg. And it's been that history and tradition deeply rooted in the nation's history and tradition approach that they've been pushing for. They lost majorities to Justice Kennedy on several cases which are famous -- Lawrence and Casey. So they lost the majorities in those cases, and so the Court was doing something other than that. And I know that when Josh and I were doing the first -- the first time we collaborated, I think Josh was urging me to take Glucksberg out of the case book because it had lost.

 

Prof. Josh Blackman:  I was wrong.

 

Prof. Randy Barnett:  It was the loser theory. And my approach to this case book has always been you need to hear what both side's theories are whether they're the majority or the minority and so we kept Glucksberg in and it turned out the minority approach turned into the majority approach. And as manifested in Dobbs, only Justice Thomas really discussed originalism in this case in a concurring opinion that's raised a tremendous amount of hackles. But the main opinion is a conservative substantive due process opinion.

 

Prof. Josh Blackman:  There's a question in the chat "Is the Dobbs dissent clearly living constitutionalist?" Yeah. I think the Kagan, Sotomayor, Breyer say, "Yeah, in the 1860s they didn't understand that it was a right to abortion, but who cares? They wrote broad language and broad terms, and we should look to values." It was a full-throated embrace of living constitutionalism and they got only three votes. So it's a huge reversal of what the Court was in the '70s. I mean, there's another question, the Ninth Amendment. If you read Roe, Justice Blackman -- no relation -- doesn't even care the basis. Maybe it's the Fourteenth Amendment, maybe it's the Nineteenth Amendment. Who cares? We got the votes, so the specifics don't matter. And you go ahead to 2022 and text and history I think do play a much more significant role.

 

Prof. Randy Barnett:  An answer to the question by Luke about why doesn't the Ninth Amendment receive the attention that it deserves is because both the progressives and the conservative justices are afraid of it the way they are both afraid of the privileges or immunities clause. And they're afraid of it for different reasons and this comes out actually in the oral argument over the McDonald v. City of Chicago case which we also cover in the book because Alan Gura is up there arguing that the right to keep and bear arms applies to the states via the privilege or immunities clause and that was the question the Court said was presented, does the privilege or immunities clause apply here? And he got tremendous push back from both the progressive justices and -- all of them, but Justice Ginsburg in particular who pressed him on whether the original meaning of the privilege or immunities clause protected the rights of women. We've already covered that in the Bradwell case.

 

But he also got pushback by Justice Alito who asked during rebuttal of oral argument, does it protect the right of contract? Which I thought was a very illuminating question because it suggests that he's thinking Lochner that basically if you recognize the privilege or immunities clause and you recognize the Ninth Amendment, you are going to legitimate the protection of unenumerated rights which the conservative justices believe is fundamentally illegitimate. And it’s the illegitimacy of protecting unenumerated rights that justifies a conservative approach to substantive due process that greatly limits its scope probably to the rights that have already been recognized and no further -- no new rights. And so Chief Justice Roberts made that clear in his questioning -- again stuff we talk about in our book -- and that is that substantive due process has limited the range of unenumerated rights precisely because it's deemed by the Court to be illegitimate recognized in the original meaning of the privilege or immunities clause which say, well wait a second, maybe protecting unenumerated rights is not illegitimate and the conservative justices are afraid of that.

 

Prof. Josh Blackman:  All right. Let's do Bruen and then we'll do the book drawing in a few moments. So this is the Bruen video. And by the way, these are all Randy's videos. It wasn't deliberate. We just picked four cases. I'm on the video as well. You'll see my long hair in the old clips versus the new clips.

 

"The Court used analogical reasoning to determine if New York's proper cause standard was "Relevantly similar to historical regulations on carrying arms." During oral argument, Justice Thomas asked Paul Clement, the lawyer for the plaintiffs, about analogical reasoning. If we analyze this and use history, tradition, texts of the Second Amendment, we're going to have to do it by analogy." Thomas asked Clement if he could give me a regulation in history that would form a basis for legitimate regulation. Thomas inquired if we're going to do it by analogy, what would we analogize it to? In the majority opinion, Justice Thomas looked to potential analogies from four periods of time. First, the Court looked to laws from medieval to early modern England. For example, the 1328 Statute of Northampton prohibited people from "going armed." During oral argument, Paul Clement stated that the statute was a prohibition on either carrying unusual and dangerous weapons or using common weapons in a way that terrorized the public. However, there was another way to read the statute. Barbara Underwood, the New York Solicitor General, countered that carrying a gun would by definition terrorize the public. Guns were deemed to be offensive weapons and thus carrying arms was always prohibited."

 

All right. And you see what we did there at the end, right? We spliced together oral argument. Those actually all were together. They actually occurred almost 45 minutes apart but when you put them one after the other, it actually makes it into a very cohesive narrative which is how we often conceive of the oral arguments as a discussion with lots of detours and off ramps but there is a thread that connects them all.

 

There are a couple questions about -- oh, we have a winner. The winner of the drawing is Larry Fuche -- are we French or not? I don't know. Fuche. Congratulations, Larry. You can email me -- my address is here -- and we will connect you with that free book. I encourage everyone else to order a copy. It will sit on your bookshelf and be a treasured icon. Everyone's going to sign off en mass.

 

 

But the Bruen case is significant for a couple reasons. Now, Matthew asked a question, "Does the standard review in Bruen possibly signal a change in other areas? That is will the Court move away from the standards review?" It's kind of weird. Justice Thomas seemed to suggest that the First Amendment is also an area where history and tradition matter and it's really not. The Court First Amendment jurisprudence is all over the place. It's modern, it's historical, it's whatever. I don't know if the Court has enough of a stomach to unwind half a century of precedent with regard to due process, with regard to equal protection, with regard to the First Amendment and all these other areas. I don't know if they have that stomach.

 

The Second Amendment is unique because it's an open field. There was no case law governing this other than Heller which was decided not even a decade ago. But there's a risk. And I want to go to Joseph's question as well. "If the Courts apply the Bruen framework too stringently the risk is a blowback." That is, if the Court starts saying "Aha, you can't require serial numbers on guns or violent felons have a right to carry firearms," it could backfire. And the Supreme Court might say, "Whoa Clarence Thomas, I'm not with you on that one. We're going to pull the brakes. We've got Roberts on board as well."

 

Now, the upshot though is that the low courts are going to resist Bruen. There might be some district court judges here and there who say let's go strike down everything. That's not going to be the majority. What we've seen so far is on the Second Circuit -- the Second Circuit has allowed every single one of New York's laws to go into effect. Restrictions on carrying in houses of worship even if the house of worship wants it, the requirement to submit social media references to go on to get a concealed carry license. A lot of these laws are just massive resistance to Bruen. And so far, the Second Circuit has approved of all of these measures.

 

So Justice Thomas made up this analogical reasoning. It didn't come from a party. I have an originalist scholar looking at me in the face. He didn't make that up. I don't know who made it up. Thomas made it up. So because it's new, let's see how it shakes out. With all con law there has to be time to let it germinate, but I think in the interim, New York and California will keep fighting and resisting the decision. Unless the Supreme Court intervenes, the laws will not change much in those states.

 

Prof. Randy Barnett:  So I agree with that. I don't think it's realistic to think the Supreme Court is going to stick with their own standard in this regard. And the evidence I would cite for that is the Bruen case itself where they bless the constitutionality of shall issue regulations. I have a shall-issue carry permit myself in the District of Columbia which I got as a result of a court decision. It was a may issue jurisdiction until the Court of Appeals said that was unconstitutional. So I then applied for my concealed carry license and that required me to submit to 18 hours of class room and range instruction spread over two days at a cost of several hundred dollars. It's a pretty onerous regime.

 

I think that it's not unreasonable to require that people who carry in public understand the rules of the road the way that people that drive in public understand the rules of the road. You don't need 18 hours to do it, however, and that's kind of punitive. And nevertheless, the Supreme Court blessed all of these kinds of laws notwithstanding the fact that there is no historical analog to requiring people who carry firearms to undergo this kind of training. None whatsoever and they already said it was okay or they seemed to suggest it was okay and that suggests that they are not going to seriously pursue this -- stick with this methodology if it decides cases in a counterintuitive way. I don't know what they will do but they are very averse right now to the tiers of scrutiny approach including strict scrutiny.

 

I agree with Josh. I think it's hard to believe that they would have the stomach to undo the doctrine that exists in other areas but here they have been very loathe to take on the tiers of scrutiny approach -- what they dismissively call balancing which I don't think strict scrutiny is balancing, but they call it that because they don't like it. And so I'm really not sure what they're going to do but I know one thing -- and Josh already hinted at that. If they don't stand up to the lower courts in the way that they did not stand up to the lower courts for a period of 12 years probably because they did not have five votes to stand up to the lower courts until the most recent composition of the court, then the lower courts are going to engage in massive resistance of this decision as they had engaged in resistance to the Heller decision and the McDonald decision. So they're going to -- the Supreme Court is going to have to take up some of these gun laws and maybe these decisions that are flouting Bruen. And when they do so maybe they'll become a little clearer about how they think the lower courts actually should go about this job.

 

Prof. Josh Blackman:  All right. Let's put some questions in the chat. Anyone else -- please, this is your chance. Let me ask Randy. So this is the second edition of our book. For the third edition, I'll ask you an unfair question. What case will drop out and what case will be added to the third edition?

 

Prof. Randy Barnett:  Well, I'm trying to think of what cases I took out of my course this year because there are cases in our case book that I took out of the course. I wish you had given me time to think about that because I don't -- I'm not thinking of them. I mean, there's some campaign finance cases that I no longer teach because I don't think they're as relevant. I don't know. What do you think, Josh? Maybe if you give me one maybe I'll think of one.

 

Prof. Josh Blackman:  Well, I'll tell you preemptively we took out Grutter and Gratz. We removed those cases preemptively. The Harvard UNC case will supplant those. That's easy. We also removed Van Orden v. Perry and McCreary County v. Kentucky. Those were establishment clause cases by Justice Breyer because we think the Coach Kennedy case has obviated all of those.

 

Prof. Randy Barnett:  And I skipped those cases too this semester.

 

Prof. Josh Blackman:  I mean, perhaps we might have a decision on New York Times v. Sullivan. Maybe the Court revisits the actual malice standard for libel or defamation. Go ahead.

 

Prof. Randy Barnett:  I do think that there is a modest revisiting of that doctrine that I would hope the Court does and that is they reconsider the applicability of that doctrine to public figures as opposed to government officials because I don't understand why public figures -- you're allowed to defame a public figure unless you are knowingly saying falsehoods. The theory of the original public figure doctrine is that people have somehow thrust themselves into the public. Well now everybody is thrust into the public, and I don't think that a different standard of libel or defamation should apply to public figures -- just because people are a movie star doesn't mean you should be able to lie about them. Whereas there are good First Amendment political process reasons why you should be able to criticize the government and government officials should not be able to use tort law to silence people who criticize them.

 

Prof. Josh Blackman:  We might get a First Amendment case about social media platforms as well. That's a brewing issue that I think that a lot of people on this call may not agree with. Another area is nondelegation doctrine. I think the Court is flirting with nondelegation in the context of the major question doctrine. We actually get an actual straight up delegation issue where you can't resolve on the narrow statutory grounds. Maybe also Article Three standing. I think the Court may take another look at it. There have been some interesting opinions that the Court's just making this up and they may decide to tighten this even more.

 

All right. There's a question from John. Faint hearted originalists -- Randy how do we deal with faint hearted originalists and how do conservative judges have the stomach or the backbone to do what they did in Dobbs? I mean, look what happened. We had an attempted assassination, we had a leak of the opinion, every force on the world is brought to bear in the Court. How do we deal with the justices having the fortitude to actually write these opinions knowing what they're going to have to suffer afterwards?

 

Prof. Randy Barnett:  Well, I think Justice Alito recently, in a talk he gave at the Heritage Foundation that I was present for, I thought captured his thought process pretty well. And you could only imagine it before he articulated it and that is he says, look, there's originalism for judges and there's originalism for scholars. Judges are constrained by stare decisis which is something that he has emphasized greatly in the past. And I think that is a constraint even on justices who are prepared to reverse cases like reverse Roe v. Wade and reverse Casey -- they still are pretty committed to the idea that they're not going to reverse everything that they don't want to upset everything. Justice Alito said he thought stare decisis was part of the original meaning of the judicial power itself. I don't think that's correct but that's clearly what he thinks.

 

And in addition, he said that -- and I think this is a very important insight that we need to keep in mind -- in order to issue an opinion -- if you write a majority opinion, you have to speak for at least five of the justices and they're not all going to agree on the basis of the opinion. And Justice Alito said that he feels an obligation to provide a rule of law for lower court judges. When he was on the Third Circuit, he said he was very frustrated when Supreme Courts had fractional opinions and he didn't know what to do as an inferior court judge. And he feels obligated to write a majority opinion and that's going to be an opinion that pleases five justices and they're not all going to be five originalist justices concurring on original meaning. On the other hand, he distinguished that to originalism by scholars which he said is not constrained by stare decisis, is not constrained by the need to write a majority opinion.

 

What he left unsaid, and I'll offer my views -- what he left unsaid is well, what is the relationship between originalism of the scholars and originalism of judges? And I think the relationship is this. I think the originalist justices are well aware of originalist scholarship that identifies what the original meaning of the constitution is and to some degree what results that leads to. So they will be more comfortable that what they want to do I think is try to reach originalist results that would be justified by originalist scholarship by utilizing existing constitutional doctrine and precedent if possible. And I don't know that I agree with that as the best approach but I think I understand this as the approach. If I add that one further step to what Justice Alito commented on the relationship between originalism for scholars and originalism for justices.

 

I called this back in 2009 the gravitational force of originalism. The idea that lurking outside the frame like a black hole in the sky exerting a gravitational force on the stars that you see outside the frame of a Supreme Court opinion based on stare decisis or precedent is the knowledge of the justices or what they believe to be the case about the legitimacy or illegitimacy of the doctrine. Getting back to what I said originally, it's because they believe substantive due process is illegitimate on originalist grounds, they therefore believe they're justified in coming up with a doctrine like Glucksberg and now Dobbs that constrains the operation of that doctrine. That would be the best I can do to both explain what the justices are doing and to a very limited extent justify it.

 

Prof. Josh Blackman:  Very good. There's a question "Is Chadha in the book?" Chadha is not in the book, and I wonder if there might be some efforts to try to revive the legislative veto in the future. I don't see the room, but Chadha is an important separation of powers case.

 

Prof. Randy Barnett:  The interesting thing about Chadha which is the one house veto case which the Court held on very formalistic -- and I believe formalism is a good thing not a bad thing -- on very formalistic grounds violated the Presentment Clause because laws to be binding need to be presented to the president and to have a statute which allows one house to veto a regulation without passing a law is violation of the presentment clause. There's a very interesting intellectual -- and I always favor the outcome in Chadha because it was formalistly quite justified.

 

But there's a new issue facing originalist scholars and theorists and that is something that you might call compensating originalism. How do judges compensate for the fact that all kinds of other doctrines in the area are wrong? And it's not entirely clear that the Chadha approach which is to give houses -- one houses the ability to veto the administrative state or what we might call the deep state when they engage in regulations that go beyond what the house thinks is authorized by the original statute. It's not clear that that might not be a compensating doctrine to the idea that there should be no delegation to the administrative agencies in the first place or the administrative agencies are not being subject to the appropriate degree of restrictions by the courts. At any rate, I just think Chadha may have reached the wrong result for the right reason if you adopt this idea that there's such a thing as compensating originalism.

 

Prof. Josh Blackman:  All right. A question from Chris. "Kavanaugh is only faint hearted perhaps? Is it that he now feels comfortable applying his criteria for ruling stare decisis for egregiously wrong cases laid on earlier cases?" So I think -- Kavanaugh and I have had a love hate relationship over the years maybe -- but I think he wound up in the right place in Dobbs. He put out the standard a few years ago -- if a case is egregiously wrong, it should be overruled. It's clear to me he wrote this with abortion in mind. He lit all the guideposts of when you're egregiously wrong. Roe ticks every one of those guideposts and then some. So I think Kavanaugh at least with regard to the Roe case was willing to go all the way.

 

I'm still bothered by his concurrence. He reached out to decide this issue about the right to travel. Now, this is a very nebulous area of the law. He said it's very clear the states can't prohibit a woman from traveling out of state to procure an abortion. That question wasn't presented anywhere. No one raised it here. It wasn't relevant. Why decide an issue that's not present? In my mind, it's the opposite of restraint. That's activism really. And it's not even a question. It's not present in the worst sort.

 

But he had one hell of a term. You can't minimize the fact that a person went to his house with a gun to kill him. I mean, the press doesn't want to talk about it. They might as well ignore it -- it was item number 85 in the headlines that day. But we came this close to an assassinated justice if this guy didn't turn around and change his mind. And the guy can't even go out in public. He goes to a Christmas party. People are attacking him for being at a Christmas party because other guests are there. So I think Kavanaugh gets a bum rap but where it counted last year -- Dobbs and Bruen -- he wound up in the right spot. I think he had a strong term all around.

 

Prof. Randy Barnett:  I think we're entering into a very interesting period of the Supreme Court because for 50 years both progressives and conservative justices have decided on the doctrines that they favor or the principles that they will follow with Roe v. Wade and abortion in mind. And so we have a strong push for unenumerated rights on the part of progressive justices because the right to abortion is an unenumerated right. We have a strong argument -- we have strong skepticism of unenumerated rights. The Ninth Amendment, the privileges or immunities clause. Why? Because recognizing any unenumerated rights as legitimate might make a right to abortion because it's unenumerated a little more legitimate.

 

Without abortion in front of us, without abortion in front of the Court, it'll be very interesting to see if justices are now going to be freer to follow the original meaning where it leads them because they're not going to be as concerned with the implications it's going to have -- pro or con -- on the abortion question. I don't know if that's going to be the case. I have taught -- as long as I've been teaching constitutional law, I've been teaching my students that behind a lot of these debates that are about other things entirely including Justice Scalia's dissenting opinions in Lawrence v. Texas. What lies behind those cases really is the abortion case and what the implications of this argument is going to be for that. Once that has been decided as far as the Court is concerned, we may be entering into a new intellectual phase of the Court.

 

Prof. Josh Blackman:  Yeah. I think Dobbs required an exercise of courage. I know the word and language used -- an exercise of courage to liberate constitutional law from this single issue. Confirmation hearings will no longer be about abortion. Maybe they will bring Roe back. Maybe I suppose. But this truly frees the Court from a shackle, a manacle, that's been lingering over it. Look at Justice Blackman's concurrence in Casey. He said point blank the next confirmation hearing will be about abortion. And he was right. With Souter, with Thomas, with Roberts, with Alito, with Gorsuch, with Brett Kavanaugh, with Amy Coney Barrett. Everything was about abortion and now that issue is just in the air. Political process is working its way through. It's going to take some time, but we'll get an equilibrium. So I really think Dobbs is probably one of the most important Supreme Court cases ever. I don't want to be too much of an exaggeration but it's in my top ten. Just the amount of change it had in the way we teach con law.

 

Prof. Randy Barnett:  So Jeffrey Wood asked a question. "So does that mean you believe the CRA is unconstitutional?"  I assume he means the Civil Rights Act --

 

Prof. Josh Blackman:  Civil Rights Act of 1964 or -- anyway --

 

Prof. Randy Barnett:  I don't know but to the extent if -- I don't know what I said that would have led so that means that the CRA is unconstitutional. I don't believe it was unconstitutional. The public accommodations part of the civil rights law was unconstitutional for reasons that are explained in this book The Original Meaning of the Fourteenth Amendment with Evan Bernick. So I won't go on at great length about that. But the republicans who wrote the Fourteenth Amendment also pushed and adopted the Civil Rights Act of 1875 which we discuss in our book -- in Josh and my book. And that was a public accommodations law. They thought that discrimination with respect to public accommodations violated the privilege or immunity of citizens to access public accommodations on a non-discriminatory basis. That was fundamental right of citizenship.

 

And that's something that we've lost sight of once, in the Civil Rights cases, Justice Bradley and for the majority basically gutted that aspect of the Fourteenth Amendment and invalidated, held unconstitutional the civil rights law, the public accommodations law that the republicans who wrote the Fourteenth Amendment ended up passing to enforce the Fourteenth Amendment under their Section Five powers. Another egregious decision by the Supreme Court using essentially living constitutionalism or in the case of the Civil Rights Act a tendentious reading of the text of the statute to reach results that they were trying to reach.

 

Prof. Josh Blackman:  I thought he meant the Congressional Review Act. That's what I thought he meant, not the Civil Rights Act. That's what I was trying to get at but I let Randy run with it because he --

 

Prof. Randy Barnett:  Well -- yeah.

 

Prof. Josh Blackman:  So the Congressional Review Act, to clarify, is a mechanism whereby Congress can basically wipe out certain regulations and that's, I think, beyond the scope of our time. We're about to wound down. I'm okay with that. I don't have too many problems with it. All right. Closing thoughts. What does Selma think? Is she still here or is she napping?

 

Prof. Randy Barnett:  Oh, I don't know. We caught Selma at a good moment. I wouldn't press -- I could ask for Selma to come back but she -- I'll go get Selma. You continue, Josh.

 

Prof. Josh Blackman:  Right. So I'll just give the closing pitch. The first edition of this book sold about 50,000 copies. It did very well. And the reason why was it wasn't just lawyers and law students who were reading this. It was about people. What motivates me at every juncture is to teach constitutional law to as many people as humanly possible. So I do TV, I do radio, I speak to -- just kidding but I will eventually. This will be a book that will live on for decades and will change over time as the Court's cannon shifts. But this is something that we encourage every level to read. Selma, what's your endorsement, sweetheart?

 

Prof. Randy Barnett:  Selma says it's thumbs up.

 

Prof. Josh Blackman:  Thumbs up. Okay.

 

Prof. Randy Barnett:  Thumbs up. Get your thumb up, Selma.

 

Prof. Josh Blackman:  How old is she now?

 

Prof. Randy Barnett:  Four months old.

 

Prof. Josh Blackman:  Four months old.

 

Prof. Randy Barnett:  Four months old.

 

Prof. Josh Blackman:  What was her birthday?

 

Prof. Randy Barnett:  What was her birthday?

 

Prof. Josh Blackman:  No. I'm trying to figure out her birthday. Tell me later. It's fine. Not important. One day it will be one of her password questions and I'll get in trouble. Okay. You can tell Randy and I get along pretty well most of the time.

 

Prof. Randy Barnett:  Yeah, we annoy each other a lot, but we like each other a lot too.

 

Prof. Josh Blackman:  It's true. It's true. And at least I'm not -- just kidding. Just kidding.

 

Prof. Randy Barnett:  What was that?

 

Prof. Josh Blackman:  And I'm not Evan Bernick. His mom actually asked me if I'm -- are you Evan?

 

Prof. Randy Barnett:  Well, I have many excellent coauthors.

 

Prof. Josh Blackman:  Yeah. So we had a good one. All right.

 

Prof. Randy Barnett:  Selma is going to be a coauthor aren't you, Selma?

 

Prof. Josh Blackman:  Yes. Okay. Chayila, are we done?

 

 

Chayila Kleist:  Yes. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today including our surprise special guest panelist who is probably going to win the award for the cutest panelist ever on a FedSoc webinar. And I want to thank our audience for joining and participating. We welcome listener feedback at [email protected]. And as always, please keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you for joining us today. We're adjourned.