Needless Friction. And Treason.

John Ross (0:01)

In 1821, in the case of Coens v. Virginia, Chief Justice John Marshall wrote some immortal words that are foundational to our law today. The Supreme Court, he said, must decide the cases that are properly before it. With whatever doubts, with whatever difficulties a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.

Hello and welcome to episode two of season four of Bound By Oath, a podcast on legal and constitutional history brought to you by the Institute for Justice's Center for Judicial Engagement. On this episode, we are going to explore another slightly treasonous doctrine that allows federal courts to decline to decide cases they have jurisdiction to hear. The Doctrine of Pullman Abstention.

Pullman Abstention is the first of five or so so-called abstention doctrines created by the Supreme Court, all of which instruct federal judges to abstain from rendering judgment in a variety of different scenarios.

Lauren Robell (1:12)

All abstention doctrines are balanced against that deep duty of the federal courts to hear cases that are within their jurisdiction.

John Ross (1:21)

We'll start this episode with a look at the Pullman case itself, which was both a challenge to Jim Crow and a classic case of economic protectionism. Then we'll dig into the doctrine that the case produced.

Lauren Robell (1:32)

It was such an elegant solution when Justice Frankfurter wrote about it. It seemed so sensible. It has never worked like that.

John Ross (1:42)

And we'll talk a whole bunch about Justice Felix Frankfurter, who wrote the opinion for the court and Pullman, and who was the justice most responsible for bringing abstention to fed courts.

Lyle Weinberger (1:52)

Well, we have two court systems. We have federal courts. We have state courts.

And having two court systems in the same location at the same time, overlapping, is inherently a bit messy and a bit complicated. And this is where Frankfurter's abstention vision comes in, and it's informed both by those practicalities, as well as by the larger political concerns that he has about federal courts being too aggressive in deciding issues that are coming before them.

John Ross (2:24)

And we'll talk about how the case impacts civil rights suits today.

Lauren Robell (2:28)

For federal litigants, it's often being sent out to wander the desert for the next 40 years, with perhaps the possibility of ultimately finding an oasis, but perhaps not.

John Ross (2:40)

And finally, we'll conclude this episode with an update to a case that longtime listeners will remember from season one. A case where our clients were sent out to wander the constitutional wilderness in search of a lost clause in the 14th Amendment.

I'm John Ross. Thanks for listening to Bound By Oath.

Lauren Robell (2:59)

Please raise your right hand and repeat after me. I, I, I, Elena Hagan, I, Brett M.

Michael Bindas (3:05)

Chabonel, I, Katanji Brown Jackson, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and the rich, to the poor and to the rich, and that I will well and faithfully discharge, that I will well and faithfully perform, discharge and perform, discharge and perform, the duties of the office, of the office on which I'm about to enter.

John Ross (3:34)

Pullman abstention comes from a railroad case, the case of Texas Railroad Commission v. Pullman Co, Bound By Oath by IJ, decided by the Supreme Court in 1941 After the Civil War and through the Great Depression, if you wanted to travel the country in style and comfort, you would do it in a Pullman sleeper car.

Lauren Robell (3:52)

Pullman's sleeping cars were the first class travel of their time. They were known for being extraordinarily comfortable. They were in some ways opulent.

John Ross (4:05)

That is Lauren Robell, Professor Emeritus and the former Dean at the Indiana University Maurer School of Law.

Lauren Robell (4:11)

Most sleeping car porters were in the beginning, people who had been enslaved. They handed those jobs down through their families because they were great employment for the time.

John Ross (4:26)

Pullman's sleeper cars featured two kinds of employees, conductors, all of whom were white, and porters, all of whom were black.

Lauren Robell (4:34)

What the Pullman porters did was they essentially functioned as servants for people who were traveling in the Pullman sleeping cars. They were responsible for carrying people's baggage, for making sure that the cars were clean and comfortable, for watching out for the safety of the passengers.