In class - what Kobylka said 40

Gilman's line about the Court after 1937

It "quit one job without yet having a new job identified"; footnote four answers what it does next

What does Kobylka want you to keep "under your pillow for the rest of the semester"?

Carolene Products footnote four: the roadmap for the Warren, Burger, and Rehnquist Courts (zero precedential value, a footnote in a filled-milk case)

Footnote four's three prongs, in Kobylka's words

(1) Bill of Rights → incorporation (reverses Barron's premise); (2) political process: voting, information, organizing (gerrymandering); (3) discrete (identifiable) and insular (confined within itself) minorities → exacting scrutiny for race, religion, nationality

How many justices did FDR appoint, and which Republican did he elevate?

Eight of nine; elevated Harlan Fiske Stone (a Republican who always opposed the Four Horsemen) to Chief for bipartisan optics

FDR's appointees in order (Kobylka's list)

Black (senator who backed court-packing), Reed (SG), Frankfurter (for Cardozo), Douglas (for Brandeis), Murphy (for Butler), Byrnes (for McReynolds), Jackson (later Nuremberg prosecutor), Rutledge (last)

Vinson Court turnover by 1953

Burton (for Roberts), Vinson (for Stone, who died of a coronary partly blamed on the Court's bickering), Clark (for Murphy), Minton (for Rutledge); every justice a Democratic appointee

Three types of presidential power (Kobylka)

Enumerated (Art. II text, e.g. commander in chief); implied (Neagle, Take Care Clause); inherent (Curtiss-Wright, foreign affairs flows from the Crown to the nation)

Four theories of the presidency (Kobylka)

Literalist (only express powers plus those vital to execute them); stewardship (Teddy Roosevelt, "as big a man as he wants to be"); prerogative/crisis (Lincoln); unitary executive (21st century)

Which theory is Black's Korematsu majority? Murphy's dissent?

Black: prerogative/crisis presidency. Murphy: "sounds like Milligan" — civil courts open, try the actual threats

What did Jackson say the Court should have done in Korematsu?

Not heard it (Luther v. Borden, political question); the Court has "no sword, no purse" to stop a war, but ruling for the government "constitutionalizes racial discrimination"

DeWitt's "logic" Kobylka mocked

"The very fact that no sabotage has taken place is a disturbing and confirming indication that such action will be taken"

Which theory is Black's Youngstown majority? Vinson's dissent?

Black: "quintessential literalist decision." Vinson: stewardship (presidents have always done this; Congress funds the war)

How does Kobylka describe Jackson's Youngstown concurrence?

"The single most cited opinion on presidential power"; the framework courts actually use; fact-specific, not a theory; Zone 3 is lowest ebb "though not always loses"

Darby in one Kobylka line

"Mirrors McCulloch: Marshall's logic recycled by Stone"; Tenth Amendment a truism = a structural principle, not a limit

Wickard's numbers and phrase

23 acres grown against an 11.1-acre quota; "Filburn alone doesn't dent the market, but many Filburns could" (aggregate effects); direct/indirect "declared dead"

When does dual federalism come back?

"It takes 60 years" — Lopez (1995)

Gaines in Kobylka's framing

Does not overturn Plessy, "applies it more closely"; now two versions of Plessy, one supporting segregation and one moving away

Sipuel and McLaurin (the cases between Gaines and Sweatt)

Sipuel (1948): Oklahoma offered no equal opportunity at all. McLaurin (1950): separate seat, table, and carrel inside the same school = not equal (intangibles)

Kobylka's one-line theory of Gaines → Sweatt → Brown

"The more you emphasize equality, the farther you get from separate but equal"

Marshall's metaphor for the pre-Brown cases

"Axe blows against the trunk of a tree" — Plessy whittled to the point of collapse

Why did Warren need unanimity in Brown?

Legitimacy (a unanimous Court looks stronger) and to blunt Southern resistance; last holdout Stanley Reed: "Stan, you've got to do what you think is in the best interest of the country"

Why doesn't Brown cite Harlan's "colorblind Constitution"?

Warren could not get unanimity with that framing; Reed "was no robust egalitarian." Brown rests on sociological evidence (Clark doll study) and is confined to education; no equal-protection doctrine announced

Who pushed "all deliberate speed," and why?

Frankfurter, to give Southern districts time; "a sociological, not legal, judgment." Result: the South dragged its feet

Chaplinsky in Kobylka's words

"The constitutional articulation of the two-level speech doctrine": protected speech is a "step toward truth"; unprotected speech has "such slight social value" that order and morality win; states regulate it under the police power

Barnette's "fixed star"

Jackson, 1943: "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion"; clear and present danger applied in favor of the speaker

Dennis: how Vinson rebuilt clear and present danger

Split "clear" from "present"; Hand's formula — the greater the evil, the less likelihood needed; "we cannot expect words to govern every instance"; context is 1951 McCarthyism

Black's Dennis line and the Near connection

"A virulent form of prior censorship of speech and press"; stopping people before they act is prior restraint (Near). You don't wait for bullets to fly, but "there have to be bullets"

What is "absolutism," and whose position is it?

Black and Douglas: "no law means no law"; regulate action, not speech. A dissenting position in Dennis, not the majority

Everson's "two squishy words"

"Respecting" and "establishment" — first time the Court ever interpreted the Establishment Clause (1947)

Everson: what the 5-4 split was actually about

Application, not doctrine. All nine accept Black's test (no tax, large or small; wall of separation); dissenters say the bus money still flows to the religion

Adamson: the three positions on incorporation

Reed (selective; Palko's "ordered liberty"); Frankfurter (fundamental fairness; Twining; states get latitude); Black (total incorporation; originalist; judges should not "pick and choose"). Murphy: "total incorporation plus"

Black's line that previews Griswold

"If it's not in the Constitution, it is not constitutional law" (so no right to privacy)

What does the Warren Court end up doing with incorporation?

"Selective incorporation to near infinity"

Eisenhower's five appointments

Warren (CJ, a convention deal for California's delegates via Brownell), Harlan II (grandson of the Plessy dissenter), Brennan (1956, a Northeast Democrat for the election), Whittaker (Iowa; Frankfurter bullied him), Stewart (Ohio)

Eisenhower's "two mistakes"

Warren (number one) and Brennan (number two) — both "compromised appointees," chosen for politics, not philosophy

Kennedy's two appointments

Byron White (for Whittaker; All-American and Rhodes Scholar; RFK's man; moderate on civil rights) and Arthur Goldberg (for Frankfurter)

How Johnson got Fortas and Marshall on the Court

Talked Goldberg into the UN ambassadorship to open a seat for Fortas; got Tom Clark to retire so Ramsey Clark could be Attorney General, then named Marshall (32 wins in 36 NAACP arguments): "I want people to walk in and see an emperor there"

When is it "the full-blown Warren Court"?

1967, when Marshall replaces Clark

Heart of Atlanta: what Clark avoided and what Douglas wanted

Clark avoided the Fourteenth Amendment to sidestep the Civil Rights Cases (1883) and used commerce; Douglas would have used §5 and implicitly overruled the Civil Rights Cases. "No narrowing until 1995"

Katzenbach: the test and Kobylka's phrase for it

Rational basis, "the cone of rationality" (presumption of constitutionality); Fifteenth Amendment §2 remedial power after 90+ years of state defiance

Loving: the two holdings and which "has longer legs"

Equal protection (strict scrutiny for race; Pace v. Alabama rejected) and substantive due process (freedom to marry). The due process holding was unnecessary but "has longer legs than Loving itself" (Obergefell)

What "invidious" means (Loving)

Suppressive, diminishing; premised on the notion that whites are superior

Exam advice Kobylka gave when returning the midterm

Read the question, form a thesis first, build the essay around it; "don't just vomit information"; organize toward a conclusion; focus matters more than time; the A range on the 60-point essay was 48–60

The grading scale (in the syllabus)

A 80–100%, B 60–79%, C 40–59%; "50% does not mean failing"

What the final exam essay will be

Comprehensive: trace doctrine over time, so keep the midterm cases in mind as the law develops

Kobylka's three example takes on the Rehnquist Court (paper model)

Activist court reversing Warren/Burger; a court that maintained precedent; a mixed bag — the prospectus needs 3–4 schools of thought like these