An Interview with James F. Blustein Part 1

Learn about the history of civil rights, and controversial cases in law history. In this video you'll learn about the writ of certiorari, as described by James F. Blustein.

What is certiorari? Since 1925, the Supreme Court has had largely discretionary jurisdiction which is to say that no one or very few parties have the right to go to the Supreme Court. In order to get to the Supreme Court, a party that is taking its case from the lower court, the state’s Supreme Court or the Federal Court of Appeals has to seek permission or get approval from the Supreme Court and you file what’s called the write of Certiorari which is the request to the court to overhear your case, and the Supreme Court now to get about 8,000 or so request to hear the cases, and they grant about 80 to 100 of those in any given year. And one of the deals in 1925 when the Supreme Court got this limit on its jurisdiction was that they agreed to observe what’s called the Rule of Four, so there are nine justices on the Supreme court in order to win your case you need the majority then five, but in order to get a writ of certiorari you’ll only need four, so four justices can control the document of the court. What is a brief of an amicus curiae? An amicus curiae is that Latin for ‘friend of the court’. Amicus is friend, curiae is of the court, and a brief amicus curiae is filed in the court by a party that has an interest or a person that has nature’s in the matter under litigation. In our common law system when a court decides a case between party A and B those issues typically will resolve parties who are not involved in litigation, and sometimes courts will not understand they’re fully appreciate what they brought the ratifications of the case might be, and so the party that have special interest or special insights or special contributions to make will become friends of the court and provide those special insights to the court in a brief, that’s an amicus curiae brief. It’s expressing a point of view that perhaps is not being raised by the party itself, and this can occur for number of reasons, one is that the amicus of curiae party might very well think that its interests are not being fully recognized by the party that’s bringing the action or the party that’s bringing the action might not want to raise a more way out theory for example. It might want to take a more conservative approach saying, we want know or we want a narrow ground onto on one particular theory and the amicus party would be able to say, “Well, that’s interesting and that of course a good theory but we want to present a more of on guard theory or something that’s a little more way out for the court to think about.” So amicus curiae briefs present many different—got of points of view, different legal theories will bring different facts to bear on that matter. It will allow organizations to express their point of view. Did Plessy v. Ferguson mandate “separate but equal” facilities? Oh no, it was not that they must have. What they said is, if you have separation you must have equality. It did not mandate separation. Many states did not have separation or segregation. For Plessy said is, if the state chooses to separate the races it may provided that it doesn’t disadvantage or discriminate against one race versus the other, and the court I think infamously in Plessy it said, separation does not necessarily bred in equality that just in the mind of the minority brace. And they rejected the notion of segregation that it was the white race that was segregating the black race even though everyone who lived in the region and who was involved and knew that the goal was to oppressed one group by the majority group, but that was the point. But if you take it as word that separation is a benign idea and nobody really believe that, but even you accepted the premise of the case that’s separation could be benign then you get to the equality dimension, and what is it mean to have equality under separation and when you get to cases like McLaurin especially McLaurin but Sweatt and McLaurin, you realized that there’s nothing as a lawyer that you can think of that will fulfill a mandated equality. If McLaurin doesn’t satisfy with the same books in the library, the same lecture halls, the same education nominally the same education, the same in everything, but less interaction, less qualitative interaction among your fellow students. Well, if you cannot interact and if lack of interaction is lack of equality then that calls into question where you can have separation and equality, and that’s why McLaurin really showed —the reasoning in McLaurin showed that Plessy certainly couldn’t work in the context of education. Sweatt v. Painter & McLaurin v. Oklahoma. Sweatt against Painter involved a law school, University of Texas Law School and under the doctrine of separate but equal that arose from Plessy v. Ferguson in 1896. States had in theory to provide equal opportunity for blacks and whites but just separate, and the court had been pretty rigid in requiring that the equality meet standards that were objectively measurable standards. And these two cases are important because they moved the court in the implementation of separate but equal from focusing on quantitative measures to more qualitative measures. And so in the University of Texas Law School case Sweatt against Painter, there was a law school for blacks that Texas started out because the University of Texas did not allow black students at the Law school. And so some of the same professors were teaching there kind of moon lighting if you will in this but not all the same, and the Supreme Court although this is not equal, separate but it’s not equal, here you have 12 black law students who did not, don’t have any contact with white students. There might be trial orders. They have to talk to juries, many of the juries will be whites and that they will not have had any contact. The law business requires networking you can’t network with people if you are not in school with them. Business is generated and I’ m just giving you my spin, business is generated by contacts you make in school to some extent if you’re not in school with somebody it‘s not the same thing you don’t have the same opportunities. And there’s no wide review and being on the wide review is an important credential and had also teaches you had the right but you don’t have it. Edit things and make you a better legal writer. There was no law review with this school, so they look at those qualitative dimensions and said, that this black only law school was not equal and I think that was pretty much of the no brain wherein you can understand that. McLaurin versus Oklahoma is a more dramatic example of the court looking at the qualitative standards and McLaurin in some ways the most reprehensible fact pattern of these Jim Crow segregation statutes. It just think you about Mr. McLaurin and what he went through just thinking about it makes you inarticulate really its just very dropping, and very offsetting. In here you have a graduate student and under the rules, to stay you have to provide access to graduate on education on a separate but equal basis and the states could not send those black students to other states. The state had an obligation itself to provide the equal all but separate graduate of professional program that had been the rule for a dozen years or so since the key school to Gaines case during ex rel. Canada versus Gaines. So how did Oklahoma accommodate the separate but equal, Mr McLaurin was the only black student in this program in the graduate program, so what they did was they said okay at the lunch room, he who have his own table. All the other white kids seated in the lunch room and there was a table for Mr. McLaurin only Mr. McLaurin he was only the student he sat there. Now is the black separation at the table and then the most dramatic and painful part this was that in the classroom in the lecture hall, they built a fence around the single seat I don’t mean a big fence he could see okay, but it was a symbolic fence. So that well he maybe sitting next to a white student there was a fence around his seat so that he would be separated from the white students in the lecture hall in the classroom. This maintained the symbolism of separate but equal. Now if you take a step back, you could see what Oklahoma was trying to do within the context of separate but equal if you believe in separate but equal, how could be more equal than having the same lectures in the same lecture hall, the same food in the same dining room and then maintains separation. So its substance, this is my reaction to this case is its horrible what they were doing to this man. On the other hand, if you believe in separate but equal how could they not be complying with separate but equal they were doing everything possible to make it equal in objective terms but it was horrible, okay. And the Supreme Court and McLaurin did not uphold this. The Supreme Court struck it down on qualitative grounds saying that Mr. McLaurin could not interact with his fellow students. A large part of education is interaction. He was there isolated by himself. He can only sit with himself at the table at the lunch period. Students often talk about the lectures or about what they are doing or about their project and he was not able to interact with them that way. In the classroom he could not interact with them in the same way because of this symbolic fence that was around his seat that only is horrible things. And the court struck it down on qualitative grounds saying that, even though the teachers were the same, the library books were the same, the food was the same, everything seems to be the same. It did not meet separate but equal. When you look at Sweatt against Painter and especially McLaurin against Oklahoma you see the total bankruptcy. The other bankruptcy if the segregation regime of separate but equal, and the court saying that McLaurin did not satisfy the separate but equal. You knew that the infrastructure of Jim Crow was crumbling because if McLaurin didn’t satisfy separate but equal then it was hard to see any regime that would satisfy separate but equal, and yet separate but equal in the context of McLaurin was so horrible because they degraded this person. They isolated him, treated him as a lower or as a different type or person. They placed purely on race and it was so demeaning that way, so it really depicted the evils of the system and the un-workability of the system and the Supreme Court struck it down. When it struck it down you could see that the infrastructure Jim Crow was going to have to crumble because how could separate but equal be workable on those criteria. And then within a short period of time four years later, the Supreme Court decided the Brown case, Brown versus and Board and held that separate was inherently unequal that was not stated in McLaurin. But certainly that it was the only reasonable reference from McLaurin was that you could not have a separate system that was equal when you considered this qualitative standards of the court had considered in Sweatt and in McLaurin.