Coale Mind

How does the Constitution limit the power to appoint a Supreme Court justice in the last year of a Presidential term? By putting one-third of the Senate, which must consent to the new appointment, up for re-election. 

If the electorate in the key Senate races believes that no nomination should be made to replace Ruth Bader Ginsburg in 2020, the voters can exercise their power and even deny the President's party a Senate majority. And if the voters are unpersuaded that the issue is important, then the Senate majority will control the decision. 

The Constitution makes this question intensely political, precisely because it is of such critical political importance to the country. 

A Presidential election in the United States is a process, not a date. The Constitution and federal statutes set six key dates for that process in 2020. This episode reviews their history, and considers how each date could lead to conflict in a highly polarized climate:

• November 3, 2020. Election Day -- the end of vote collection, but the start of vote counting;
• December 8, 2020. "Safe Harbor Day" -- the day a state's resolution of a dispute about electors becomes binding (the date that drove the fast pace of Bush v. Gore);
• December 14, 2020. The day electors formally vote in each state;
• December 23, 2020. The deadline to transmit a state's electoral vote to Congress; 
• January 6, 2021. "Counting Day" -- usually ceremonial, but potentially the start of a  brand-new election in the House if no candidate has an electoral majority; and
• January 20, 2021. Inauguration Day. The President's term ends. 

Two headlines from last week --

1. Warnings, from the recent Republican convention, of a "socialist agenda" if the Biden-Harris ticket is elected, and

2. A news story about an increase in overtime-pay litigation.

But wait, isn't litigation about workplace conditions part of a "socialist agenda?" This episode of "Coale Mind" examines that question in light of the Supreme Court's cases about government power to regulate the economy, when the "Lochner era" came to a crashing end during the New Deal. 

I-35 is the main artery of Austin; massive billboards on either side of it advertise a wide variety of goods and services to freeway drivers. 

The City of Austin tried to block new digital billboards that related to "off-premise" activity (business conducted somewhere other than the location of the sign). The Fifth Circuit found this unconstitutional under the First Amendment as a content regulation. 

In this episode, I follow the chain of hypotheticals that took this sign ordinance from "well-intentioned idea" to "unconstitutional law." Along the way, I consider how tricky it can be to distinguish "speech" itself (hard to regulate) from the "time, place, or manner" of that speech (much easier to regulate). 

A busy morning at the Dallas County Courthouse; the trial of a personal injury case about a rear-end collision; and the defense counsel strikes three Hispanic jurors. Has he violated the Batson cases that forbid strikes based on race or ethnicity?

The answer to that question turns on how the law must use objective facts -- statistics, the transcript of the specific questions asked during jury selection, etc. -- because the subjective intent of counsel is unknowable. Reasonable minds differed on that point in this case, as they often do in resolving important questions about the presence of racial animus in our society. 

Massachusetts recently announced its plan to require flu vaccines for public school students. A 1905 Supreme Court decision, Jacobson v. Massachusetts, seems to give a state that power. This episode reviews Jacobson and considers how developments in (1) religious freedom law, (2) the law of administrative-agency procedure, and (3) the law of personal body autonomy, may weaken or strengthen Jacobson in the modern setting. 

This fall, the Supreme Court will consider two decisions by the en banc (full) U.S. Court of Appeals for the Fifth Circuit, the federal appellate court for Texas.

In the first, California v. Texas, a Fifth Circuit panel found that the individual mandate of the Affordable Care Act was unconstitutional after the repeal of the relevant tax, and the en banc court denied review in a close vote. In the second, Collins v. Mnuchin, the en banc Fifth Circuit found that Fannie Mae's regulator was structured unconstitutionally. 

These cases, important in their own right, also reflect a fascinating encounter between two "conservative" federal courts. Will the Fifth Circuit, widely seen as a particularly conservative court after President Trump's many appointments, be seen by the Roberts Court as having gone too far? Or will the two courts by "in synch" with each other on these important constitutional issues? 

The right to speak about a scientific subject (such as mask-wearing in response to the COVID-19 pandemic) is guaranteed by the First Amendment. But the exercise of that right may carry with it a responsibility to speak as a scientist, or else risk falling into the psychological trap of cognitive bias. 

In 1842, near Austin, a Comanche raiding party stole Mr. Herbert's mule. A neighbor got the mule back, after which he and Mr. Herbert got in a lawsuit about who now owned the mule. The Supreme Court of the Republic of Texas ruled for Mr. Herbert. The reasons why go to the foundation of America's legal relationship with Native Americans. And they are important to this day, because they explain why the U.S. Supreme Court just ordered a new trial for an Oklahoma case that arose on land that Congress declared to be a reservation for the Creek Indians. 

In the 1843 case of Walker v. McNeil, the Supreme Court of the Republic of Texas voided a contract to sell a slave. The court found that the buyer had used "duress" to force the sale--in other words, he had wrongly interfered with the seller's liberty by making threats against him.

Of course, the Walker court missed the forest for the trees. It waxed poetic about the liberty of the seller, never noticing that the slave had no liberty at all.

This old opinion is extraordinarily misguided. But can we still learn from Walker, by studying its specific oversights? Do we sometimes also miss the forest for the trees, especially when we talk about social justice issues that are part of slavery's ugly legacy? I suggest in this podcast that Walker, despite its age and misguided holding, still has a great deal to teach us.