Transcript for:
Week 5 Legal Studies Overview

Go ahead and hit record. And thanks, Melissa. Yeah, she's actually a very sweet kitty.

It's just heartbreaking. But she's happy now. She's very spoiled, even though she sounds horrific.

So this week, we're in week five, but I want to preface something. So I am so sorry, I've not finished grading. The reason is a technological one. So because I'm under the umbrella of A&M. every single term and this is why I don't have an A&M email for some reason IT cannot wrap their heads around and I love them they're good folks but they can't wrap their head around the fact that I work under two different branches of A&M because I work under face-to-face A&M Corpus Christi and of course the you know law part right so they gave me two different identification numbers which has caused absolute chaos and so every single term I get cut off for like a good three or four days.

I don't know why. So I put in a ticket. They're supposed to remedy the issue again.

So I apologize. I am not ignoring y'all. I was on a roll getting through all of your submissions, but I apologize for the delay.

But as soon as I am granted access again, I'll be on it and finish that up to where hopefully, no later than I'm hoping by today, they can open it back up. That way I can grade all of you. So please know I'm not ignoring you.

I didn't forget about you. It is not me. It is the technological gods that are not letting me access your submissions.

But nonetheless, there's one thing I want to remind you all about. The one thing that we did see in this past week is first person and no case law. I'm trying to put this in a good way that y'all remember. For those of you who aren't using KSOL, remember KSOL is your best friend, your best friend in legal writing.

So you got to invite it to the analytical party because if you don't, then it's just going to look like your opinion. And while your opinion may sound wonderful, it would sound better and stronger and more supported if you utilize KSOL because that's part of this course. We want to see how do you handle the tools that we've given you.

Now, with that being said, how many of you recognize that there's a case on this week's assignment that's been overruled? Roe versus Wade. Bingo. So we've got some emails that are like, well, since it's been overturned, do we use the new case Dobbs? Do we use Roe?

And I've talked to you, Professor Helgi, about this. And you guys have a choice. Because, again, our aim is to see what you do, how you utilize and apply. case law.

And so with that being said, if you want to use Roe as if it's still good law, go for it. But if you want to utilize Dobbs, which I'll try to get into in today's lecture, then you can also do that. So you have a choice. Okay. I want to make that clear.

You have a choice because we want, again, the foundation of Roe, and I'll talk about this later today, is still good, actually. So we'll go into that a little bit. here in just a little bit but you do have a choice in regards to this week's assignment so this week we got some great cases to dig into we have brown griswold washington and loving and of course roe v wade so some big heavy hitters these are the cases that most people know about right so absolutely big cases and then last but not least dobbs we'll go into dobbs a little bit all right Oh, thank you, Vince. Vince linked if you guys are interested, the Dobbs case and the chat.

Thank you, Vince. So this week, I want to do some weekly spotlight because quite a few of you hit it out of the ballpark in terms of your submissions. And I like to do this because it also shows your classmates what an A plus kind of submission looks like.

So first and foremost, Jasmine. Jasmine, you did great. You notice that she utilizes case law right out of the gate.

I love seeing that. Because what that does when you introduce case law on the front end versus the conclusion is it sets up all the subsequent why analysis. So you're saying this case applies. And then when you go into your why, it makes more sense. So some of you did use case law, which is fantastic.

But instead of putting it at the front end, a lot of you put it in the concluding point. So don't end with it. You need to start with it. So she did that very well.

Next, I want to highlight Ray. Ray did awesome. And what I liked about his is if you notice his very first sentence, the most powerful branch of government is right off the gate.

It's concise. It's efficient. He's telling you his argument.

It is very clear. I don't have to go fishing around in his post to see what exactly is Ray arguing because he tells you right up front. And then following that, he introduces McCulloch, which is fantastic. But what I also liked about that is it also demonstrated the fact that you can use cases from previous weeks.

So I had a few of you email me and ask, can we only use the cases from the week that we're in? No, your bag of tools includes. every single case that we've gone through throughout this term.

So if you even can pull back to Marbury, do it. It's completely your party to do so. Kenneth also did fantastic. I just really enjoyed reading the way he crafted this submission.

It was well written, well thought out. It flowed well. So kudos to Kenneth.

And then Shaila, what I loved about her post is if you notice she put it in blue. So because I feel like I'm 100 years old and I need I probably need bifocals at this point. But this actually really helped me see, OK, she's not only using statements from case law, but she's actually highlighting it in blue. And I really I know it sounds like a small detail, but it was very much appreciated. So awesome job to all of you.

OK, so I put first of all, who doesn't love John Candy? He was so funny. He's one of my, he was one of my favorite comedians, but this week is nothing to be nervous about. I know I'm already getting nervous emails about the assignment. Don't be nervous.

What I would like for you to do is go back and look at the comments that myself and Dr. Helgi have given y'all, especially Dr. Helgi's comments to you all in the week three assignment, your first writing assignment. So each week we like to see improvement. Right.

And so if we're not seeing improvement, that's a red flag. And the way to show us that you're improving week to week is look back at our comments and take into consideration what we're telling you. If we're saying don't use first person, don't use it.

If we're saying you need to use case law, use case law. So learn from the comments that we've given you so far in order to tackle this week's assignment, which is this right here. Let me move my head so you guys can see this. So I want you to focus on one thing in particular.

I didn't ding many of you this week, but I did bring up to your attention that if you're way in excess of the word limit, that's not a great thing. And I'll give you a great example as to why. In law, time is money. Okay. Time is money.

Especially when you're crafting a memo, you're charging somebody that time, right? So for a judge who is very busy and doesn't have a lot of time, they don't want to read war and peace. They want to read something that is short, concise to the point.

Because again, time is of the essence. They don't have a lot of time to devote to one single case, right? So this is your time to practice being more concise. Because Judge Boyle is very busy, she doesn't want your answer to exceed 400 words. Now, if you're at 405 or 410. Don't worry.

But I would I would advise you don't go into 500, 600 words. You will be dinged for that. So make sure that you watch your word count this week. OK, before we dig in, I'm going to pause for a second. Does anybody have any questions?

No questions. OK, good deal. OK, so. Somebody tell me, why did the 13th Amendment come about?

Why am I showing you this slide? What does this amendment represent? And you can either say it or chat it, either one. It represents the end of slavery.

Bingo, end of slavery. Now, it's important because I like to give you all context. With a lot of these cases, I think we miss the context of them, right? So context is important.

We have the Civil War. So spoiler alert, South loses, but they're not happy campers about losing, right? So after the 13th Amendment, end of slavery, we also have the 14th Amendment, which is the theme for this week. I want to highlight that.

You know, each week we have a theme. This week, it's all about due process, but a specific type of due process. But notice it says, nor shall any state deprive any person of life, liberty or property without due process of law. It's such a beautiful statement, but we've seen this before. What other amendment has almost this exact same verbiage?

Let's see. The fifth? Yep, you got it, man. Donnie, you're on the ball.

Vince, you too. I don't know what coffee y'all are drinking, but it is working. So yes, it is indeed the fifth.

Now, remember, when the founding fathers crafted the original amendments, they weren't fearful of states. They were fearful of the federal government. Right.

So the Fifth Amendment says the exact same thing. But the only word that's missing is state. So after the Civil War, the 13th Amendment came into effect. And then the 14th and the 14th added that beautiful word of state. So basically, the federal government is saying, hey, you can't do it either.

Texas, you can't do it either. Louisiana. Right. So it's giving them that ability to leash the states.

Okay. So keep that in mind. All right. So before we get into Brown v. Board, I want to give you a little bit again of context because Brown v. Board was born, say that five times in a row. It was born out of a lot of historical context.

There's a lot of cultural, social issues that go into it, of course. So in 1866, their 14th Amendment came into effect. And what's interesting is that it came into effect as a result of the Civil Rights Act.

There was a Civil Rights Act of 1866. And basically what it did is it gave teeth to the 14th. Because think about the 14th Amendment saying no state shall deprive somebody of life, liberty or property without due process of law. How?

Right. So there's no teeth in that statement. So the Civil Rights Act was put in place and it stated. that declared all persons born in the United States to be citizens without distinction of race or color or previous condition of slavery or involuntary servitude. Interesting, right?

Now, as we well know, correct, Ben, we're getting there, correct. The Southern states were not happy campers. They weren't jazzed about this, right?

So there was a compromise, the 1877 Compromise. They agreed to withdraw Union troops, which once they withdrew, let's just be honest, the South just festered, right? They festered and they were allowed to enact Jim Crow base of regulations and laws that prevented Blacks and whites from having any type of interaction legally, socially, educationally. So they also enacted what was called the Separate Car Act.

So Jim Crow 101, right? So separate. So blacks in one car, whites in the other.

Now, who is this gentleman? And I'm showing you this picture for a reason. Who is this handsome gentleman? Isn't that Plessy? Plessy?

That's right. This is Homer. I love his name, Homer.

Homer Plessy, right? So there was a method to their madness as to why they actually chose Homer. to test whether or not they would actually arrest him if he sat on the white the designated white train car why do you think they picked him not sure is he light-skinned correct he was the test case because they said if he gets arrested then nobody's safe because arguably he doesn't he did not look at the time uh he's not dark complected he's light-skinned He was the test case. In fact, he was only one eighth black.

So he looked white. So they chose him specifically because of his physical characteristics to see, OK, how far are they going to go to implement to make darn sure that this separate car act is official. Right.

And ding, ding, ding. He's arrested. Right.

So they made kind of a girls and boys bathroom type of argument. And by that, I mean. And you kind of hear it still to this day, which is even though they're separate bathrooms, they're still the same facility, right? You still have the same means to go to the bathroom.

So they still both have access, but they're separate. So this was the birth of that separate but equal argument, okay? So the separate but equal argument was born out of Plessy.

So the Supreme Court, boom, they rubber stamped it and said, it's cool, as long as it's equal, you can have separate facilities. Separate environment, so on, so forth. So what I'm trying to say this nicely, but what sucks about this case is it totally took the teeth out of the 14th Amendment.

Because remember, the 14th Amendment said equal protection and everybody has their day in court. And it provided this amazing, beautiful verbiage that was supposed to apply to all equally. And what they did was they took the teeth out and they said, yeah, it can be separate as long as it's still equal. Right. Okay.

So wouldn't that be a case where the court has decided to interpret the acts of the legislative body? as being not accurate. I mean, that's, that's, I've always viewed that the courts, the SCOTUS has viewed during that time period over the Reconstruction Acts as being them asserting their perspective of Black rights.

They just kind of like, because everything was there, and they squashed it, and it lasted for almost 100 years. Yeah, absolutely. Absolutely. And, you know, if you think about it, And I don't want to go too down the rabbit hole, but think about the argument that Hamilton has made. But if SCOTUS had done that, we wouldn't need Brown, right?

Correct. Correct. Yeah, absolutely.

You're 100% right, Vince. And again, and I want you to kind of connect it to our reading. Think about the arguments that were made in Fed Paper 78 about the judicial branch being so weak. Yee!

Right? So I'm not saying you should think one way or the other, but just as food for thought, think about those arguments in relation to these decisions. right?

Are they so weak? So stop for a second, though. Think back, the court in Plessy is interpreting the words in the Constitution.

Guys, you know the answer to this. What gives them the ability to do this? I'm pulling it back. I know it's early.

Marbury? Yes, Marbury. And yes, Becky said judicial review. So you're both right. High five.

High five. Yes, I just want to give you guys a gentle reminder about the things that we've already tackled because you guys know this. So, yeah, they have the ability to do this under judicial review. So this brings us to Brown v. Board. OK, so I wanted to set the stage well for Brown v. Board because, again, there's a lot of historical context to take into consideration.

Now, it's referred to as Plessy Part 2. OK, Plessy Part 2. That's what a lot of people refer to Brown v. Board as. But let's just dive into this a little bit further in terms of what happened. This is Topeka, Kansas. You have Linda Brown, little Linda, who she lives seven blocks away from the school, but she can't go there.

She has to go to a school that's further away. She has to go six blocks to board a bus to go over a mile further to school for African-American children. Lunacy.

Right. So in Kansas, you had Oliver Brown and Brown v. Board is actually not just little Linda. It's a consolidation.

It's a merger of many parents. who were upset about the situation of having these separate but equal educational environments, right? And they chose him for a reason.

Now, look at his background. Oliver Brown was one of a dozen parents. He was a welder, World War II veteran, and he also served as an assistant pastor at his local church. So you can see why they named the Browns as the lead plaintiffs in this matter.

But also, look at where it takes place, Topeka, Kansas. The other families that were merged into this matter were from Louisiana, Mississippi, Alabama. Why did we pick the Topeka folks? Why do you all think?

So somebody said. I would say because they were they weren't necessarily slaves there in Kansas. So it wasn't as relevant.

It's farther because of the other state that you mentioned. Good. So you all are on the right track. They did not. They knew with this decision, with this case, when they merge this action, if they would have named Alabama, a family from Alabama as the lead plaintiffs, that would have even riled up the fur of the South even further than this case already was.

So in order to dig into this matter without pissing off more of the South. They picked Topeka, Kansas. This was kind of like the neutral territory, so to speak, right?

So Topeka, Kansas plaintiffs were chosen. And of course, Oliver, who had a stellar background, was named as the lead plaintiff. The Browns were.

So he walked his daughter to the closer public school. And what's interesting is he was asked to wait. Okay.

And ultimately the principal said, no, Linda, sorry, you can't go here. So boom, they had a case. which is exactly what they wanted.

They wanted that to happen so that way it could trigger the Supreme Court ultimately to review this, you know, separate but equal nonsense that Plessy had set the stage for. So now the NAACP had a basis to argue this class action. There's actually 20 other students consolidated into this, but ultimately five cases were included that made it to the Supreme Court decision of Brown v. Board. So this that Brown being from Topeka, Kansas, they actually included him and they explained it. They said so that the whole question would not smack of being a purely southern one.

So they even address this in the aftermath of Brown. The Supreme Court justices actually said, yeah, we were glad they picked Topeka, Kansas, because had they not, it probably would have been. a different outcome in terms of how the public responded.

So the states felt they were good since Plessy dealt with the same issue. So initially when Brown v. Board was about to be heard by the Supreme Court, everybody felt safe, meaning the states that had adopted separate but equal, they were like, we're cool because Plessy already said it's okay as long as we offer the same things to everybody, right? So this idea of separateness. Think about the new court, meaning the Brown Court. They had to determine whether or not this violated the 14th Amendment.

Now, pause. Who was the Supreme Court justice at this time? He was quite a progressive fellow.

I don't know why I turn British when I say that, but it just seemed proper. Okay. We got to chat.

Yes, exactly, Michelle. It's Warren. So the Warren court was renowned for being progressive, right?

Meaning most of the rights that we have today, meaning stop and frisk, search and seizure, inadmissible evidence if it's not collected by police properly, all of those decisions came out of the Warren court. So they were just like, you know, no holds barred, just issuing these massive rulings at that time. So.

When this was decided by the Warren Court, it was interesting what they took into consideration. They looked first at the physical structures and they said, look, the physical structures may be equal, arguably, but psychological impacts matter. So in their briefs that were submitted before the Supreme Court, it was the first time in history that social science mattered, meaning sociology, psychology studies.

were submitted to the Supreme Court to review. And what they found is, you know what? Having separate places for children to go to school, saying white children over here, black children over here, that negatively impacts black children's psychological health. Because just by being separate, that tells them that they are seen as less than, right? They're treated as less than.

So they did not focus just on the... physical environments, but on the psychological impact of this separateness, right? So it's kind of neat that social science actually saved the day in this case. And again, it was the first time that it was taken into consideration legally. So kind of a cool thing.

So the court ultimately ruled, you guys know, the separate's not equal. It's a bogus argument. So they put the teeth back into the 14th Amendment.

But here's the kicker, and I always like to point this out. Brown tasked local federal judges with making sure the school authorities integrated, are you ready, with all deliberate speed. What's wrong with that? And I am leading you, but what is wrong with that?

It was really vague. No timeline put in place. You're absolutely right.

Donnie, Taryn, you are hitting on the nail head. So with all deliberate speed, if I told my son. And my son's name is Oliver.

If I told Oliver, Ollie Bird, because that's what we call him, Ollie Bird, you need to clean your room. And he says, when? With all deliberate speed, son.

He'd say, cool. And he'd go back outside and play for another 10 hours. So if you give somebody wiggle room and you don't give them a set timeline, they're just going to drag their feet.

And that's exactly what happened. So while Brown is a phenomenal case and should be held up here. I do want to point out that they kind of shot themselves in the foot, I would say, by not tasking them with a specific timeline because it allowed them to do it exactly what they did, which is drag their feet. Michelle said it allowed time for the state and local governments to delay in the hope of obtaining more support.

Yep, that's exactly right. Professor Shaw, so when they talked about equal and you're saying that they implemented the social science piece of it. was there any consideration to the other pieces of equal that may not be as tangible, but some tangible pieces like resources? And obviously, you know, in those communities, it may, you know, not have allocated additional to resources, but more impoverished.

The building, you know, you said the physical building may have been equal, but from what we see historically, none of those things were equal. I mean, it was of poor quality when it was for the Black. people.

So was that a factor in any of that, or were we just kind of overshadowing that with higher level pieces? So they did address that, but not interestingly as, as much as you would think it was addressed. But again, in terms of what they emphasize, they focus on the physical structures, like they both were given a building, which it's like, okay. But it really didn't go as in depth as I know.

we probably all think they would have gone into that. They really focused on, they were both given buildings, but the psychological impact is something to address. It's something to note.

Now, just as a side note, guys, there are still desegregation orders and lawsuits today. In fact, I had the misfortune, and I want to highlight that, underline it, highlight it. When I was city associate attorney in Louisiana, we actually had a desegregation order in Tangipahoe Parish. And I was horrified at the conditions of the African-American school, because it was primarily Black kids that went to the school in Tangipahoe Parish compared to the white kids. And just to highlight just how bad it was, and this was back in 2014, but it's still an issue today.

The Black kids didn't have textbooks. They couldn't take them home. They had to leave them in the classroom.

And their textbooks were from the 70s. And comparatively, the white kids had their own personal tablets and a massive amount of, you know, things that they could take home, have at their disposal. So it was drastically a disparate situation.

And it was shocking, again, because in 2013, 14, people are still fighting it. They're still fighting it. So, I mean, it's still definitely an issue.

But you're right. They should. could have addressed that more, but it really wasn't the impetus of their argument.

Wasn't there another Supreme Court case though where that was discussed, the details of comparing and contrasting two different universities, I keep thinking? Yes, there was a subsequent case that went into that, but not Brown, but you're right. You may like that one, Ms. Campbell, a lot better because I think I recall reading that in a civil rights course I took and it it extrapolates.

very much along the lines of what you're, I can't think of the case. I don't know what it's called. I think it's, I think I know what you're talking about, Vince. I'll look and see maybe if I can when I get access to the course again, I will share it with y'all.

So yeah, it's just been a day, but does anybody know who this handsome fellow is? Which by the way, how cool are their photos back then? So today faculty members take photos like we're felons and taking a mugshot. And they have these amazing pictures back then. I was telling my chair the other week when I was putting this together, I said, this is what we need.

Like, I don't smoke cigars, but I would love like a cool shot, like in this type of style. Like that's just classy. So does anybody know who this young man is?

I'll give you a hint. He was the, he was the attorney for the Brown family that argued before the Supreme Court that later sat on the Supreme Court. Ah, yeah, I see Donnie's saying, oh, okay.

So this, my friends, is Thurgood Marshall. Isn't he great? I love this photo. That's a great photo. I haven't seen that photo before.

All the photos that I've seen, he was much later in life. Compared to, yes, exactly. Yeah, for sure. But he has such a brilliant sense of humor, guys.

And I think it's important to note. these justices are human and, you know, some of them have these really quirky personalities. And Thurgood Marshall, I loved his sense of humor. He liked to kind of poke people, you know, and he came on with the Warren court, which is of course his cup of tea. It was more of a liberal progressive court, but then two years into him being an associate justice, then Warren left.

And then who came on? Rehnquist. Totally different vibe, right?

And he used to tease Rehnquist and he'd say like, what's shaking cheap, baby? Like just to, you know, gig him. And so they had a really good rapport amongst each other.

And then Ben said, it was, I think, argued by Thurgood Marshall before he joined the court. So look through his cases. Oh, nice. I'm sorry. That's for Ms. Campbell.

I apologize. I should. No worries. I'm referring back to the case I was discussing.

I'm giving her insight. I believe he was the one that argued that case. Most likely. Yeah, most likely.

Yeah, he was pretty phenomenal, but I just wanted to share that just because it's a great photo and his sense of humor was fantastic. OK, so stop for a second. I want your brains to be alert. Why discuss Brown v. Board in relation to the topic or issue of substantive due process? Now, pause.

There's two types of due process. The 14th Amendment. says, and it's again, yes, exactly.

The 14th Amendment says that nor shall any state deprive a person of life, liberty, or property without due process of law, right? So without due process of law. Due process, I'm going to save y'all a ton of money for a 1L year law school, means this, and it's very simple, which is you get notice.

and an opportunity to be heard. That's what due process is. It means you know why you're in trouble.

The government can't take away your property, sentence you to death, sentence you to jail, or sentence you to prison without telling you why. So you get notice. But two, you get a right to defend yourself, meaning a trial.

So before they try to take away your life, your liberty, or your property, you know why, and you get an opportunity to defend yourself. That's procedural due process. Meaning there's a procedure in place, right?

You have to go through the steps in order to have any of that potentially taken away from you by the government. That's procedural. Now, substantive is different.

And that's what is the theme, again, of this week. This process of substantive due process touches on fundamental rights. So, right to marry.

Right to, well, no longer right to abortion, but you guys get the drift. Does it say anywhere in the United States Constitution that we have the right to marry or the right to education? Nope.

It's nowhere in there. Right. Correct. Terrence said no.

So where does it come from? Why do we have these rights that we consider rights like right to marry, right to for during Roe, right to an abortion or right to an education? per Brown v. Board? Well, it stems from substantive due process.

Now, I want you to keep that in mind because I'm going to revisit that after Loving, okay? So, I'm just kind of letting it simmer in your heads. So, now you know that education, not in there. Right to marry, not in there. So, where does it come from?

So, Loving v. Virginia touches on this in part and it's a little bit. it's a great case. I linked this by the way, it's a very good, um, short video that I think will kind of enhance your understanding of loving, but this is the actual couple. This is the loving couple, which could you have any better of a name for this case than loving?

I mean, it's all about love and they're loving. So I just love, I love loving. Um, but I include that for y'all.

So you have Mildred and Richard and they get married. Now, what's interesting is that they got married in the District of Columbia and they returned to their home state of Virginia. Now, why did they leave?

They were arrested. Told you. Was it illegal? It was illegal.

It was called anti-miscegenation laws. OK, so say that five times in a row. Anti-miscegenation. And that banned all interracial marriage.

So they had to leave. They weren't able to get married in their state because it was considered illegal. If they would have, they would, as Perry correctly said, gotten arrested. So what's interesting is when they came back, of course, you know, they go to the grocery together.

They're out and about around town and, you know, people talk. So that riled up a bunch of folks. And so what's interesting slash horrible is the local sheriff at the time, he raided their home in the middle of the night. And he did it because he wanted to catch them in the act, meaning, you know, them being intimate. And he wanted to catch them in the act so he could say, yep, they violated racial integrity.

So the Lovings were ultimately found guilty and sentenced to a year in jail. Now, the trial judge agreed, and I want you to perk up your ears with this, agreed to suspend their sentence. Oh, how nice of him. If the Lovings would leave Virginia and not return for 25 years. Right.

So. Pause. Is marriage a constitutional right?

You should all say no. Founding fathers didn't say anything about that. So where are we headed here?

Unfortunately, they lived in D.C. and they hated it, right? They hated it. They wanted to go home, even though Virginia has, you know, wasn't treating them wonderfully. That's their home.

That's where their family members live. That's where their memories are. That's where they grew up.

And there's something to be said for that, right? So they weren't happy throughout this whole time period. They're not living in their home state.

They're living away. Now, the judge told Mr. and Mrs. Loving, and I hate this quote, but I just want to enhance it because I think it's important to note in terms of why it got to the Supreme Court. He said, Almighty God created the races and he placed them on separate continents.

The fact he separated the races shows that he did not intend for the races to mix. That just makes your heart hurt, right? So this is what they're contending with. Now, Mildred, and this is a fun fact.

She actually wrote the attorney general, who was Robert Kennedy at the time. Now, he did not touch it with a 10-foot pole. Instead, Robert said, you know what, ACLU?

I think this is a perfect topic for y'all. You guys help Mildred. So he passed the issue along to the ACLU. And that's the first time that somebody was like, you know what, Mildred?

We're going to help y'all. So they took on the case, the ACLU. And ultimately, the question was. did the law, the anti-miscegenation law of Virginia, did it violate the 14th Amendment's equal protection clause? Because everybody has equal protection of the law, right?

Now, guys, nine years had passed before the court ultimately heard arguments. Now think about that. They were away from their home state for nine years. That's insane. So it's pretty sad.

Ultimately, it was a unanimous decision. And it's not warrant. I apologize. Warren. I need to scratch that out.

But Virginia's act ultimately is found to go against due process and equal protection clause of the 14th Amendment. Now, notice it says due process. Right.

The 14th requires freedom of choice, not be restricted by insidious racial discrimination. That was the first time that they actually said that racial discrimination. Period.

The end. Full stop. Now, the right to marry resides in us, the individual.

There's no legit purpose to stop people from getting married other than discrimination. Now, what's interesting is later on, that same argument was used before the Supreme Court when gay marriage was being litigated, which is super interesting. Right.

So they adopted that same argument, which is it's up to individuals as to whether or not they want to take on that oath. Right. To make that vow. Now, what's interesting is kind of like Brown v. Board. Remember how I said Brown v. Board didn't have a timeline to allow the states to drag their feet?

Same thing with Loving. They didn't give them a timeline. And so in many states, anti-miscegenation laws actually stayed in the books until as late as Alabama, which is 2000. It's insanity.

Now, both due process types are touched upon in Loving v. Virginia. And I want to highlight that. You have procedural.

Remember, procedural means you get notice and opportunity to be heard, meaning their right to marry was stripped away from them. Their freedom to marry stripped away from them without telling them why and without giving them a chance to defend themselves. Right. So that's procedural. But substantive was also touched upon because marriage, it's not the amendments one through eight.

It's not an enumerated right. But and ready. It's considered a fundamental one.

Now, right now, you all, I hope, are asking, what's a fundamental right, right? Oh, Vince, that is funny. I actually did not know that.

Vince said, ironically, the state's slogan is, Virginia is for lovers. Well, it's for lovers, but not for lovings. Okay, sorry.

So what exactly is a fundamental right? Okay, now this is when it gets a little sketchy, or not sketchy, confusing. So I want you to perk up your ears and really listen to this because I don't want you guys to get too in the weeds with this.

Keep it simple, right? So the enumeration of the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people. This was this debate between the feds and the anti-feds.

Remember, when they are trying to ratify the United States Constitution, were the Bill of Rights originally in it? Nope. They were not in it. Their bill, Amendments 1 through 8, were not in the original Constitution in 1787. They brought this original Constitution to the states and they said, will you ratify it? And there were some that said yes, but most said no, because they said, wait a minute, you're giving all these rights to the legislature, to the president, to the courts, but you don't say a darn thing about rights of the people to protect us against y'all, right?

And so... that's when they came back three years later and included the Bill of Rights. Now, the reason I say that is when they were arguing back and forth as to what should be in this Bill of Rights, Hamilton and Alexander, you guys know those folks well, they argued, you know what? I don't think we should write these down.

Because what if we forget one? And their phrase was, we're limiting our liberty by writing these rights down. So they didn't want a Bill of Rights because they were afraid, again, that if they forgot one, then it may be the most important right. Right. So they said, we're kind of shooting ourselves in the foot by writing these amendments down.

But ultimately, the compromise was, in fact, the Ninth Amendment. Now. I hope you guys have read the ninth amendment. If you haven't Google it right now, but I'm going to give you the cliff note version of the ninth amendment.

The ninth amendment is basically the response saying, you know what, if it's not written down or if it's not included, it doesn't mean that it doesn't exist. Meaning if it's not one through eight, meaning it's not an enumerated right and amendments one through eight doesn't mean that it doesn't exist. Okay.

So they said, if it's not through one through eight, it does not mean other rights are not retained by the people. But the million dollar question there becomes, well, what does retained by the people even mean? So that's when the 14th Amendment comes in.

Heaven sing. Right. So they are able to take controversial.

Well, what some people say, think is a controversial issue like gay marriage. And they say, look. if it's up to the states in the 10th amendment but if it's considered a fundamental right meaning liberty because i think about it we define everything we define things to death and law but how do you define liberty most people would say freedom right liberty equals freedom but freedom to do what ah that's where the fundamental rights come in so liberty and the 14th amendment that the government can't take away your life, your liberty, or your property without due process of law. It's that liberty prong that represents fundamental rights.

That liberty prong right here represents marriage. It represents education. It represents, well, it used to represent abortion, right?

So that's that liberty prong. That's what they're hanging their hat on to say, just because it's not included in Amendments 1 through 8 doesn't mean it doesn't exist. Because it could exist in this liberty circle right here.

Now I'm going to pause for a second to let that set in. Does anybody have any questions before we move forward? Because I know that can be kind of a hard thing to conceptualize.

I do. I mean, it's not exactly around the liberty piece. But so if they said like, you know, in the Brown versus Board, this is kind of open to, you know.

implement slowly without a real timeline, what happens in the in-between? So if it's not, you know, kind of like you said in Alabama, was it Alabama that they didn't implement it into 2000? So in 99, you know, if this comes up, how is it handled being that it's been implemented in some areas and not in others, or they don't really have a timeframe? That's a great question. So the shorthand version of my response is that it depends on enforcement.

Right. So they can have something in the books. But the question is, do they enforce what's in the books? Right.

So, for instance, in Texas, it's still against the law and the books to brush your teeth in public. Y'all know that? It just makes me laugh. It's like, what did Texans have against hygiene?

That's not a bad thing. Brush your teeth. If you're in a campground, if you're camping, I mean, that's public. Oh, see, that's a good point, Perry.

I didn't think about that. But you don't see a lot of cops arresting. Well, of course.

First, I don't see a lot of people brushing their teeth out in public, maybe camping, like Perry said. But you don't see a lot of cops being like, you know, put your hands behind your back and put down the toothbrush, you know. So it kind of depends on the enforcement part of it. Right.

So they can have it in the books. But the question is, do they enforce what's in the books? Now, if they do enforce what's in the books, that's what can trigger a case.

Right. So and that's what happened in places like events that in Kansas, you can't spit on a sidewalk. I just learned something. Fun fact.

Do you know it's illegal in Arkansas to call them Arkansas? Isn't that funny? Because I was speaking in Arkansas.

My grandmother is angry about that. It's making me laugh because it was funny. I said it as a joke, but again, not all my jokes are great. And I was talking because I'm consulting a police department in Little Rock next month. And so I was doing a Zoom call with them and I was like, so how are you doing, Arkansas?

I said it was a joke and it was like crickets, death stares. I'm like, I'm kidding. Just joke.

Yeah, they did not think it was funny. And then they responded and they said it a little too seriously. And I was like, okay guys, like simmer down. But they're like, do you know it's still illegal to say Arkansas?

And I was like, arrest me. Like I would love that on my record. That would be amazing.

The fight goes even beyond that. There's a river that runs from, my family's from Arkansas. There's a river that runs from Arkansas into Kansas. I grew up in Kansas. So the Arkansas River has a debate.

When you are in Arkansas, it's the Arkansas River. But the minute you cross the border, it's the Arkansas River. Oh, oh, maybe that's where it stems from.

You cannot argue over the name. The minute you cross that border, that is it. Wow. I love that. That is hilarious.

So now I know. I have a little more context to it now. At least in Florida, you don't get ticketed for for tying your uh your elephant to a telephone pole what what yeah it's illegal in florida to tie an elephant to a telephone pole that probably goes back to the carnies the carnies used to live yes yes in gissington florida when john and mabel john ringling had the circus he they bring all the animals to florida during the winter yeah they would tie up giraffe they not giraffes, but they would tie up elephants to telephone poles and they were pulling them out.

Wow. You could drive. I love Florida. Florida just makes me giggle. There are some really cool like small towns that have like really old carny rides and stuff in their yards because they have these abandoned things.

See Vince, I don't do well with that. See we used to have a ranch and the guy next door collected carnival equipment now let me just say this there's nothing scarier at night than having a neighbor that collects carnival equipment and he would turn it on so it's like dude dude it's horrifying i was not a fan and so every time i see i'm like oh like it's just spooky and weird and he was a weird fellow to begin with but he would just turn it on tonight so he'd have this horrifying like a scary movie and i'd be the first to die i would just play possum and be like i'm done I'm not even going to argue. Just do it. So fun facts, guys.

I love, love. That's really ironic because I was going to ask about the Little Rock Nine and you guys went into that was like really ironic. That's what I was going to speak to in terms of the law not coming into play.

So that was really amazing. That's yeah. Well, that's a perfect thing to bring up. So when you bring up the Little Rock Nine, how do you see it relate? Well, I mean, the students were denied.

right, the ability to come into the school, right, which is significantly after the legislation. It was, you know, kind of based on that, the verbiage, right, being, you know, it's kind of not well defined. So I thought that it tied in, it just happened to fall into the rest of the story. No, that's perfect, Donnie. And I want to point out, like, the Supreme Court can rule one thing, right?

And they can craft these amazing arguments. But the million dollar question is, and then what? You know, and that's what Hamilton was saying.

Like they lack that enforcement power. They can say all day and night, you shouldn't do X or you shouldn't do Z. But if the public sentiment does not see the legitimacy of that argument, then that matters.

You know, so, yeah, it's definitely something to take into consideration. So as we move forward, I want you to think about this bubble over here being liberty and how. if something's not an enumerated specific right, then we can plug the issue at hand into this liberty bubble, right, to protect it, even though the founders didn't include it. So with that in mind, we come to Griswold.

And I'm sorry, I may go a little over guys. So I apologize for that. But I'll try. I'll try to tackle all this. You know, I don't want to speed through it.

But if you guys need to hop off, you won't hurt my feelings. But we come to Griswold. Now Griswold's fascinating because this deals with just a ban on contraceptives and the law issue just to kind of show you what it said stemmed from 1879 and it said any person who uses any drug medicinal article or instrument for the purposes of preventing conception shall be fined not less than 40 dollars or imprisoned not less than 60 days. Now think about that's 1879 and they're charging 40 dollars like And I haven't done my inflation calculator to figure out what the amount would be in today's money.

But $40 was a lot of money back then. So they were really serious about this. So here we have a married couple and they wanted to use birth control, right, to prevent a potential pregnancy.

And they said, right, utilize contraception since it's in marriage. You have a married couple that wants to do this. And they're being prevented from doing so. So do they have a right to do this?

That's the question. Is this a violation of marital privacy? Now think about the founders didn't include anything about marriage in the Bill of Rights. There's not a hint of it, right? Not even a mention.

But remember the Ninth Amendment up here, the Ninth Amendment, again, it says just because it isn't written down doesn't mean it doesn't exist. So we have to determine whether or not it exists. And this is when one of the best phrases, I mean, it's just such a crazy phrase. stems from Justice Douglas. He argued that the Bill of Rights specific guarantees have penumbras.

Isn't that a great word, penumbras? And people have the hardest time and they still debate about what this term actually means. But you might feel like Scooby-Doo here, like, you know, like, what is a penumbra?

So a penumbra is implied power. That's the easiest way I can phrase it. A penumbra is an implied power. So they're saying, in essence. Try and think of an example that when you look at all these amendments, that when you collectively look at them together, that the founders did support having privacy, even though they didn't say it.

That's what they're implying, that you have this this protection as a result of this emphasis on privacy. So they look at the spirit of the First Amendment, the third, the fourth, the fifth, sixth, seventh, eighth, ninth. And they say. When you look at all of that collectively, there is an implied right to privacy and you can't infringe it.

You can't violate it. And so they use the ninth to create this privacy expectation, right? And they say, you can't deny it states you cannot prevent the Griswolds from using contraceptive because that's their privacy right.

If they want to do that, rock on Griswolds. So they don't want to step on their toes because they're saying you have a liberty interest to do that, even though the founders didn't think about that and didn't include it. It exists when you look at everything in its totality. So a penumbra and somebody sent me this in an email. So thank you for sending this.

But you can see over here, this would be all the implied powers because it's in your face. The sun's right there. But over here in the shadow area, this gray area is just a hint of light.

Right. So that's where the implied powers are. That's where you have your right to marriage, your right to education, so on and so forth.

And then I want to pause. We come to Washington v. Glucksburg. So up till now, the court has been looking at implied powers, substantive due process. Is it a fundamental right?

Is it not a fundamental right? Because remember the wording of the Fifth and the Fourteenth Amendment. You can't have the state or the government take away your what?

What's the very first thing they say? Search of the now. Yep.

Then said life. So your life, your liberty, your property. But here, which of those are they focusing on? Yep, Taryn. Which one of those three prongs, life, liberty, or property, are they concerned with here in Washington v. Glucksburg?

Life. Yep. Life. Sorry, life. I was on mute.

It's okay, Donnie. I saw your mouth moving too. They take it very literally in this case, right?

So for those of you who haven't read it yet, you have four doctors, you have three terminally ill patients, and you have a nonprofit that counsels people debating on physician assisted suicide. So these are folks that are going to die. There's no hope for them. And I hate to say it like that, like, sorry, Timmy, like you're done.

So they're about to die. And they are debating on whether or not to commit suicide because they're facing the inevitable. Right.

Now, Washington said, no, there is no legally assisted physician assisted suicide. That's a no, no. Right. The question is, did this ban violate the 14th Amendment? Do you have a right to physician assisted suicide?

Do you have a right to end your life with the assistance of somebody? Right. Remember, life, liberty and property. Life.

liberty, and property. Rehnquist court. So what are we guaranteed to? Life. He says you're guaranteed a life, not death.

You have a right to live. You don't have the right to have somebody help you die. So they say it's not a protected liberty interest. It's not going to be included in this bubble along with marriage, along with education. We're kicking it out.

You don't have the right to die with the assistance of somebody else. Can't do that. We're not going to help you do that. Yeah, Perry?

All right. Well, then these people have a choice. Then how do they apply that to abortion? Because they put Dr. Kevorkian in prison.

for people that made the choice to end their life but then you can argue well a child doesn't have a choice for abortion so i don't know well perry i mean you're you're asking good questions and they address some of your questions and daubs which i'll go into here in a second the and roe actually turned on something that not a lot of people recognize but we'll go into that here in a second so i'll just pump the brakes for just a second because we'll tackle some of your questions in here in just a sec Because they're good questions. That leads me, I don't normally tell y'all to go out and buy a book or, you know, go to the library and write a book or check out a book. But if you are interested in the Roe v. Wade decision and how it came to be, this book is amazing. And I don't care what side of the decision you land on, but this book, Justice Blackmun's personal records, his personal papers. were actually locked away.

He did not want anybody touching them until I think it was like 15 years after he died. I want to say it was something about that time period. But once that time period lifted, this author was allowed to review all his papers.

And so this is actually his thoughts and what he did throughout the Roe v. Wade decision, because he was the deciding vote. And so it's a really good insight into how Roe v. Wade came to be and some of the things that they grappled with when debating on whether or not to side one way or the other. So if you're interested in the context of Roe v. Wade, this is an awesome book and I highly recommend it because we very rarely get this level of insight into a justice's thought process.

But Roe v. Wade, there's no right to an abortion. And the... United States Constitution doesn't mention anything about it. It doesn't even say you have the right to have a kid, right?

There's no mention of children in the Bill of Rights. So Roe v. Wade dealt with a woman who was in Texas. And Texas at the time had an exception for abortions, meaning they had an exception for rape and incest. But that wasn't the case with this woman.

So her procedure, her request to have an abortion was denied. Now, What's interesting about this case is that she gave birth by the time the case reached the Supreme Court, which is rare. And I say that because most of the time when a case reaches the Supreme Court, you have to have a problem still, meaning there has to be a remedy still.

But here the kid's born. So you can't, you know, I don't want to get, you know, whatever. But what was the remedy? Right. Melissa said, I find it strange that she was preparing to abort a child, but never.

but never been pregnant. I'm not sure. Well, when she, I just thought it was crazy that she brought this to the court prior to ever having a child or ever being pregnant.

So it was someone that was just thinking ahead. She didn't want to take, or did I misunderstand it? Because I think you misunderstood it because she actually was pregnant.

She saw an abortion. They denied it because it wasn't the results of rape or incest. And so, but by the time the case had come before the Supreme Court, she had given birth, but she had actually given the child up for adoption.

Okay. That's my fault. Thank you. Oh, no, please.

I know. Years later. I'm sorry.

She did recant though years later. She became a pro-life activist later in her life. So she's a very interesting teeter-totter. If you review her life and you look at some of her, it's very, very moving and interesting to learn.

Whatever side you take, I mean, it's just really neat to see her moving back and forth over her lifetime. Oh, very interesting. Thank you, Vint.

Absolutely. Yeah, there's a good piece on NPR where she gives a really interesting interview. And Rebecca said this was her fourth child.

Oh, I didn't realize it was her fourth child, Rebecca. Interesting. So Wade was the Dallas district attorney.

He initially argued. And the district court, Roe, argued that this was a constitutional issue. She said abortion, it's a guaranteed right.

But the district court sides with her under the First Amendment. And they said it's a religious basis of a ban. So that's a no no. So let me put it another way.

They're saying at the district court level that the only reason why Texas would have this, the only interest they would have is based on and the only expressed interest that they made initially was based on a religious belief. And as we know, under the First Amendment establishment clause, you can't have the government. putting in laws to support a religious belief, right? Separation between church and state.

So as a state matter, there's nothing about it in the constitution. So it's up to the states. 10th Amendment.

But what about the Ninth Amendment? Remember, if it's a right that's not written down, doesn't mean it doesn't exist. So I love this case for the opening joke.

And if you go to Oyez and you listen to the oral argument, you will hear the worst joke ever made before the Supreme Court in history. And you kind of feel bad for Floyd because he starts out, whenever a gentleman argues against two beautiful ladies, they'll always get the last word. Nobody laughed.

it's amazing how bad his joke bombed. It was bad. So just for laughs, you should listen to the oral argument for that. Just that part, because it's just amazing. Yes, exactly.

Taryn. Taryn said, read the room, Floyd. Yeah, he did not.

And you know, he was so proud of that when he wrote it. You know, he was like, this is going to be great. Yeah, it did not work in his favor.

So Black men. Hence the book that I suggested you guys check out if you get a chance. He said, what's the compelling state interest here?

Why would states want to permit this restriction? I mean, this restriction against abortions, right? What is their interest here? So the only ones that were given were the woman's health, protect the fetus.

And Black men, he did a ton of research. And I mean a ton. And he looked at medical decisions by a doctor.

So this is something between a patient and a doctor, right? And he looked at trimesters. What happens in the first trimester?

What happens in the second trimester? And he said, the first trimester, if a woman gets an abortion, that's safe, right? It doesn't, and I'm not saying this is my personal opinion, but this is as per the opinion of the court and what they determined.

In the first trimester, it's safe to get an abortion for both the woman. And at that point, it's not a viable fetus. It can't live outside the womb.

So there's no compelling interest to protect the woman or the fetus at this point. The fetus is inviolable. Woman is safe at this point. But then he looks at the second trimester and he said, here, there starts to be an interest in regulating for the health. And by third trimester, absolutely, because the fetus may live outside the womb.

So at this point, you may regulate abortion at this point, because then those two interests, health and protection of the fetus, that makes sense. So. what I want to emphasize at this point is Roe v. Wade didn't say abortions for everybody at any point. That's not what it said.

It said you at the first trimester, the state really doesn't have a viable interest. But during the second and third, the states could arguably come in and regulate because that's when those interests may make more sense. Now, Griswold, remember Griswold?

So Griswold actually was cited in this case. It was used. And they said privacy under the Fourth Amendment. gives you this zone of privacy. Remember how that penumbra argument, there's this penumbra, doesn't talk about contraceptives in the Constitution, doesn't talk about children or abortion in the Constitution, but it could be protected in the zone of privacy.

But at this point, I want you to ask the question, who's privacy? So what's interesting about Roe v. Wade is typically it was viewed as a woman's right to choose. which is ultimately what it ultimately became before Dobbs.

But that's not actually what the court focused on. And I want you to really read this decision carefully, because what the court actually ruled on is that it's actually an argument that it's the doctor's right to help the patient make that decision. So it's the privacy between a doctor and a patient.

That's what they're actually arguing. They're saying whatever happens in this room, in this medical office between a doctor and their patient, that's protected that's private space that's private territory right so they didn't really focus on a woman's right to choose they're saying it is the right between a doctor and a patient to have whatever decision they ultimately come to an agreement on to be private to respect that privacy so that was actually the emphasis of Roe v Wade which is interesting Dr. Shaw yeah I have a question under the HIPAA rules Even though that's just really it's the Accountability and Portability Act. There is a rule in there that states privacy amongst a health care provider and their patient.

There are states right now. I want to it's here in the Midwest that the governors are going to large medical facilities and demanding patients private health records. to determine whether or not a woman has gone in and sought any kind of abortion care or has received an abortion that flies in the face of the federal standard of HIPAA. Oh absolutely. Well this is the argument too Barbara is They can demand all day and night.

They can stomp their political feet all they want. Is it going to be given to them? Most likely not.

So they can make those grandstands. Those documents were given. Those documents were given to that attorney general.

And I'll have to Google who it was, but I want to say it was Indiana. But those documents were given to the attorney general and his staff. So now it leaves. the protection of the medical facility and those providers and were given to an attorney general in a different state. See, I wasn't aware of that, Barbara, but I will say that there is an added layer of protection, which means under the United States Constitution, there is a prohibition against what's called ex post facto laws.

And I'm going a little bit in the weeds, but I'll just because you brought it up and it's a great point that I wasn't aware of. But ex post facto laws means, in essence, the government cannot punish you for something that was legal when done. Right.

So it was legal whenever those women had that procedure, arguably. Right. So they can't go back and do anything to this person, this person or this person, because that would be a violation of ex post facto laws. So it's interesting that they're doing that. Because you're right, that is a complete violation on many, several different levels.

Yeah. And then also leads to, and some of the OBGYNs that I was working with here in Dallas, when a woman has ovarian cancer or has uterine cancer, many times she may not have had a child. And so they look at the potential of a hysterectomy. because that would be the only way to relieve the woman of any future cancers, because that's what it's attacking. That's the part of the body.

Yeah. And so they were afraid with this Dobbs act that they would turn around and say, no, if she's viable to have a child, you have to leave her intact. No matter if she dies from cancer.

Yikes. So this leads into a whole other plethora of complications and many women also that were, are forced to have children now or bear, bear a baby. born a baby, the damage that it does to her body, not only to her reproductive system, her lungs, her pulmonary, her vascular and her cardiovascular, plus her nervous system. So you can take a healthy 25, 30 year old, has a disastrous pregnancy, is compelled to carry that pregnancy to term, now will never be able to have another child. now faces lifelong disabling results of having to carry that fetus all the way through to last term.

So that's another thing that jobs didn't take into consideration. And this is one of the, these are two things that the medical industry right now is grappling with, is women losing their privacy over whether or not they've received abortion or sought abortion care. Texas is doing this now. And.

the health effects and lifelong health issues that a woman has if she's forced to carry that fetus to term. Yeah, I mean, you're all heartbreakingly sad and true statements, Barbara. Thanks for sharing that, by the way. Yeah, it'll be interesting.

You know, I'm trying to juxtapose this with what we're tackling. And I think because, you know, it's not the law according to Shaw. The world would be very different if it was.

Um, but it's interesting. I'm sorry. Can you go back to that last statement? Your video froze. Oh, I apologize.

I said, you know, I had to be careful with what I say. Um, because I, it's not the law according to Shaw, right. But, um, it is in fact what the courts rule.

So speaking of Dobbs, I'm going to jump into Dobbs actually. So that way we can kind of explore what you're talking about, because they did debate those issues between the dissent and, of course, the majority opinion. Right.

So here is the link. If you guys don't have it, here it is. You can click on it.

Here's the PDF. But of course, when this case first came down, it was funny because Professor Helgi and I, it literally came down the week that we assigned this assignment for the first time. And we were like, what?

like, no, let's change everything. But now we kind of look at it differently. Now, again, we're giving y'all the option. Y'all can tackle the assignment as if Roe is still good law or Dobbs because both of them touch on the issue of fundamental rights. Is it a fundamental right?

Is it not a fundamental right? And they make good use of that analysis. So what's interesting is in that opinion, in the Dobbs opinion.

They Alito actually began his opinion by observing that abortion presents a profound moral issue in which Americans hold sharply conflicting views, which probably is the understatement of a lifetime. So and he recognizes the fact that the Constitution doesn't refer to abortion at all. There's not a hint of it, not a peep of it, period, the end.

But they do recognize that there are due process rights, life, liberty, property. Now, remember. Even though something's not mentioned in the Constitution, does it mean that it cannot be considered a fundamental right, meaning that liberty interest up here?

Does it fit into this? Can the Ninth Amendment cloak around this liberty interest and protect it? So Alito explained that the court has required such rights to be deeply rooted in our nation's history. But until the second half of the 20th century, Alito observed there's no support in U.S. law for the right to an abortion.

Indeed, he pointed out most states regarded abortion as a crime. So he's looking at this like historical context of this, right? So taking it a step further, we have stare decisis.

Now, pause. What is stare decisis? What does that mean?

It means that you don't overturn historical ruling. Bingo. And so the court addresses in a really interesting way.

They said, look, we won't overturn precedent unless there's a compelling state interest. So they look at Plessy. Plessy was stare decisis. That was precedent for the Supreme Court. And then they overturned it in Brown.

They said, no, Plessy, get out, get away. Right. So now they're saying, well, Roe is right here. Do we treat Roe like Plessy or do we overturn it with this decision that we have before us?

That was their debate. Right. So Alito emphasized that Roe and his wording was was egregiously wrong and deeply damaging and should not be allowed to stand. But the million dollar question is why?

Right. So what's interesting is that they actually kicked the can. They bucked it to the states. They said, look, it's up to us, the Supreme Court.

Really, it's up to you states, you, Texas, you, Louisiana, you, Florida, you, Alabama. You guys have the ability to make that ultimate decision. So Tenth Amendment.

So they're using the Tenth Amendment at this point. They're saying it's not in the Bill of Rights, this abortion thing. So since it's a right that's not enumerated and granted to the federal government. Boom. It's your job, states.

So Justice Roberts. And again, I don't his writing style is phenomenal. I don't always agree with him and neither do you guys have to. But just look at his writing style.

He has a really great writing style, but he actually says that this was a serious jolt to the legal system. And he actually agreed to uphold Mississippi law, but would do so without overruling Roe and Casey. Specifically, he says the viability standard and Roe that presents this dilemma, because think about the trimester standard that was presented and debated and Roe was from the 60s. Now, with medical technology and so forth, what he's saying is we should revisit it because fetuses can survive outside of the womb at a much earlier stage.

So he said maybe we can address that. But he's saying we don't have to overturn Roe. That's not the solution here. So he's basically. in his own way, saying, hey, Alito, pump the brakes, man.

You're going a little extreme there. So you can see Roberts being a little hesitant in his opinion. So he thinks, ultimately, that they should abandon the timing rule, 22 to 24 weeks of general consensus of viability.

And he said the right to terminate a pregnancy should extend far enough to ensure a reasonable opportunity to choose, but need not extend any further. So he's saying we shouldn't overrule Roe completely. We just need to revisit this one standard.

Again, he doesn't want to go as far as Alito. Now, Justices Kavanaugh and Thomas are very, very interesting. And I really want you to perk up your ears when, or your eyes, when you review their decision.

Because Kavanaugh... looks at this and he says, there's nine unelected members of this court and we don't possess the constitutional authority to override the democratic process and to decree either a pro-life or pro-choice abortion policy for all people in the U.S. So he's saying it shouldn't be in our wheelhouse. Again, he's saying not our job.

So Kavanaugh wrote, does not allow abortion throughout the United States, but instead properly leaves the question of abortion for the people and their representatives. So in essence, he's saying federalism. It's not up to us.

It's up to you guys to determine how you want your people to whether or not they do have access or don't have access to it. And if so, if it's regulated in any way. Thomas, though. really takes it a step further.

And I don't mean to laugh because I don't think it's funny, actually. But he indicated that decisions like Griswold, Lawrence, Overfell are very much in doubt because he actually took the view that the right to have the government follow proper procedures before taking away someone's life, liberty or property specifically does not protect any substantive rights. He says the due process clause, life, liberty, property.

should not, and I want to repeat that because he was very clear, it should not protect any substantive rights. So think about what he's saying. Brown v. Board of Education found that right to education, substantive right.

Boom. He's saying shouldn't be there. Griswold, right to contraceptives, right to privacy within a marriage.

That's a substantive due process right. The one he left out though, which one did he leave out guys? marriage marriage between the races he left out loving yep and because why and it's interesting and again we all know why this yes we do don't don't we and i and i'm trying to i'm trying to walk a careful line guys because again my opinion does not matter but what the facts show is that he did leave out loving and he's married to a white woman so it is a very interesting contextual fact and again i don't want to get attacked It's just not my personal opinion. It is just something that he conveniently left out. Right.

So he did open the door for education, marriage, contraceptive to be questioned in the future. And so that is something in our field. Legal scholars are kind of holding our breath like now what?

You know what I mean? Because that's a big deal. It's a very big deal. And it's something that this kind of made me change my whole.

discussion of the executive from the judicial to the legislative of government just seeing these the thought process of how things change for the row and way this made me change my judicial review of how I had my discussion just learning this process alone yeah it's interesting isn't it like each week we get another piece and another piece and you see how impactful these things can be and are um So it's interesting because Thomas actually, he even took it a step further as if the other wasn't enough. And he urged the court should reject substantive due process entirely and reconsider cases like Griswold, Lawrence, Oberfell, again, leaving out Loving. So, again, I and I'm trying again to walk very carefully, but just note how substantive due process evolved from Brown. to Griswold to Loving. I almost left out Loving.

And note how this kind of opens that door just a little bit, right? So it'll be very interesting. But you can see how the justices themselves, where they were going head to head in this, right? So the dissent is very telling.

And this is the first time in United States Supreme Court history that this and what I'm about to show you has happened. So Kavanaugh argued the decision was neutral since it was leading up to the states. So he's saying, hey, we're not saying no to abortion.

We're saying it's up to you states. Right. So the court, they said, does not act neutrally when it leaves everything up to the states. This is the dissent saying this. Rather, the court acts neutrally when it protects the right against all comers.

Kavanaugh's position, they insisted, was instead a no compromise refusal to recognize a woman's right to choose. So what is missing from their closing? Because that was the end line. It's in every single dissent, every single one in history, except for this one.

Y'all ready? Respectfully. The first time in United States history, they left off the word respectfully.

So you can see how the justices, man, they are just like. You know, even Roberts, even though he ultimately concurred with the opinion, you can see him saying Alito, you're going a little cuckoo for Cocoa Puffs. Right. So he's even kind of scooting back, whereas Thomas is like, I agree and we should go further. So there's very contentious, very contentious decision.

So just note that because it's, again, the first time in United States Supreme Court history that they left off that word, which is very telling about. what was going on behind closed doors, I'm sure. So with that being said, you guys now have on your plates this week's second writing assignment. And it's a doozy.

So one thing I want to elaborate is please use case law. OK, please use case law. Avoid first first person statements and write concisely. You're writing to Judge Boyle and Judge Boyle.

She doesn't have time to read long, long posts. Right. She wants something short, sweet to the point. So in essence, when you look at these issues, just remember. The founders put in the Ninth Amendment because it was their compromise.

They said, we need to have rights for the people. We need a First Amendment right. We need second, third, fourth, you know, all the way to eight.

And what they're arguing is just because we didn't include everything doesn't mean it doesn't exist. So that's what the Ninth Amendment is for. And then to tack on to that, we have the 14th Amendment, which prevents states from taking away a person's life, their liberty or their property without due process of law.

And it's that liberty bubble up here that we have in the past put in unenumerated rights that are considered fundamental. Like we have a fundamental right to marriage, even though it's not mentioned in the Constitution. We have a fundamental right to education, even though it's not mentioned in the Constitution.

So keep that in mind when you tackle this week's assignment. And you can utilize Roe. You can utilize Dobbs. We just want to see how do you use the cases, the tools that we're giving you to support your argument.

Does that make sense? Yes. Good deal.

Does anybody have any questions or anything? And I apologize. I won't have this uploaded into our site until I get access to the course again, which hopefully will be today.

But I will post this in my PowerPoint as soon as. They give me access again. I'm sorry for the delay.

I had a question, ma'am. Can you post your PowerPoints in the modules? Because I've been getting I don't have authorization to download. Yeah, I watch the recordings.

Fine. I wish I could. I'll try to find a different way to post it. Unfortunately, they won't let me put it into the core shell like in the modules because somebody fancier than I am created the modules. So.

They're pretty protective over their modules. So I wish I could, but I'll definitely post a couple different links. So that way, if one doesn't work, you can try the other one.

And if that doesn't work either, just let me know and I can attach it to you a different way. To Perry's point, after you upload your video for the week, if you go back in Perry and go to the. to where the video under the files is uploaded for the office hours you can actually ask it to pull a trans to transcribe it for you and then you can pull that either either into a word document or a pdf and then through that you can go in and highlight um what you what notes and all you want from her slides oh see i didn't know you could do that that's neat yeah i could watch the videos in the transcript i just don't have the powerpoints I'll work on that, Perry.

I'll give you I'll try to include several different formatted links to hopefully you won't have that issue. I apologize for that. But yeah, for some reason, they don't like us including things that are extra considered extra from the modules.

You can just email the PowerPoint. You know, I try to do that in the class emails. I've tried to do that in the past and I still had folks that had trouble accessing it.

So I'm not sure. This is what I'll do. I'll attach it. I'll include the link to my Dropbox. I'll send in smoke signals.

I'll try to I'll try to convey it as many ways as I can. Yeah. Carrier pigeon, which, by the way, you know, fun fact, Mike Tyson. Do you know that he is like really into pigeons and like carrier? Like, yeah, Donnie's shaking your head in that crate.

Yeah, he used to be real active with me. You guys have him fly around, fly to his, even getting involved in boxing as a younger man. That's so funny. I just, that's right.

That's just so, yeah, I saw that the other day. I thought that was just so cool. I was like, I would never have guessed. Cause I still picture, you know, Mike Tyson for back in the day.

Yes. Yeah, I know I'm getting old when I was going over a court case with my undergrads yesterday, because I don't know if y'all knew, but yesterday we were all celebrating Constitution Day. Y'all were tailgating and like counting down the days, right?

But I was talking to them about different stuff. And we're talking about one of my favorite cases. And y'all can forget this in two seconds.

But is Matt B. Ohio. It's just a fascinating case. And do you remember the promoter, the big promoter?

Who is Mike Tyson's boxing promoter? Don King was the most popular. But he had about everyone.

And I showed a picture of him because he was a part of the story of Matt B. Ohio. And I realized nobody recognized him. And I was just like, oh.

I was just like, oh. So I was like, and I told him, I was like, I'm just going to go back to my rocking chair and watch Wheel of Fortune now. I have a question for you surrounding Thomas's, his announcement about reviewing. prior cases, Griswold, et cetera.

Do you think that his target is the implied powers? Do you think that that's his target? Is that what he's targeting? Because the cases he threatens, per se, seem to all surround the question of the implied powers.

So do you think that's his goal, like privacy itself? Do you think he wants to revisit the entire concept of that? I mean, because it's terrifying to do just Griswold. But he lists a litany of different cases and they all share that one common thread. So and then like if it is implied powers, is it privacy or is it something else he wants to play with?

Because, I mean, maybe I'd feel better if I knew what it was. Right. What do we have to look forward to? You know, I'm going to be careful and just say I don't know the workings of Justice Thomas's mind. I wish I could.

I wish I did. I know many people. I don't think anyone knows the workings of Justice Thomas is mine. I got to go because I have a 930 appointment. I'll see you guys later.

Bye. Yeah, I don't I don't know. Perhaps, Vince.

You know, it's it's a very interesting position for him, especially in that he typically never wrote opinions. It was very not until very recently that we ever saw anything from him. So all of a sudden he's not pretty vocal and it's, it's interesting.

It's almost like he waited until Scalia passed away to wake up, to open up. But it, it, it almost seemed to me like why say something unless I need to. I mean, I don't think it's that he didn't have a strong opinion. You think he did.

Scalia is a tremendously good writer. Like him, don't like him. The man can write and he will just want to throw something across the room. He's so good.

His rationale is. Really good. And, and, you know, he wrote bad law when his rationale is flawed. That's my opinion.

So when you read his stuff, if his stuff is flawed, it's like, ah, this is bad because his rationale is flawed. And it's, it's, you know, it's going to be horrible. But when his rationale is on point, which generally it is, you know, he's really good. I mean, don't forget Ginsburg and him were buddies.

I mean, they used to go trips together. They were always friends. So their legal minds between them while they were opposite were phenomenal.

Oh, for sure. And when they balanced each other out. Right. I mean, it was really interesting how they were able to debate.

And I think this is my personal opinion. I just want to preface it. But I do think we're kind of missing that today.

And like we we can't seem to debate without wanting to kill each other. And I think it was a beautiful thing that they were able to debate one another. and still remain on friendly terms and sway each other because they were able to sway each other a few times um on different cases i i often think that some of that is because of how fast we put new justices on on the bench in the past it's always been it yep now it's like boom and i think that the rush of throwing new justices on the bench in such a short time period it's not about their political views because hey gorsuch wrote a case that blew liberals minds they did not expect it right so i don't think it's about their political views i think it's about they all have different personalities and when you throw that many personalities into a room at once they're bound to conflict i don't i don't think they've found their beat yet amongst each other i think they will but i think right now they're in that period where they're like you know constantly you know trying to find their voice in their space, you know? Maybe they should take a page out of Marshall's book with Marbury versus Madison and go stay in a cabin together and drink until- We won't have Griswold if they do that.

No, no. Yeah, that's interesting. But well, guys, I'm going to hop off. But if you guys have any questions, please email my Gmail, because as of right now, I was just checking my text messages and they still have yet to fix the issue. So hopefully they will have it fixed very soon.

But if you do have a question in the meantime, please email my Gmail. because I don't have access to Canvas right now. But thank you guys so much for today.

I appreciate you and your questions and your engagement. And I hope you guys have an amazing day. Thanks, take care. Thank you. You too, thank you.