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Tilting at Windmills

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January 17, 2006
By: Kevin Drum

STARE DECISIS....I'm curious about something and I'm not quite sure how to go about looking it up, especially since it involves a judgment call. Here it is: When was the last time the Supreme Court voted to overturn a truly seminal decision?

Obviously the definition of "seminal" is a matter of interpretation, but I'm thinking of something similar to the way Brown overturned Plessy or West Coast Hotel overturned Lochner. That is, a major and longstanding precedent that was clearly repudiated by a later court.

Any nominees?

Kevin Drum 1:30 PM Permalink | Trackbacks | Comments (99)

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Lawrence vs. Texas?

Posted by: Doctor Gonzo on January 17, 2006 at 1:32 PM | PERMALINK

It wasn't longstanding, but overturning Bowers v. Hardwick was pretty major.

Posted by: Atrios on January 17, 2006 at 1:33 PM | PERMALINK

Bush v. Gore overturned the precident of leaving a precident. We can't go around protecting equal rights for just everybody.

Posted by: Boronx on January 17, 2006 at 1:35 PM | PERMALINK

Maybe Baake?

Posted by: EdgewaterJoe on January 17, 2006 at 1:36 PM | PERMALINK

Finders v. Keepers?

Posted by: Lionel Hutz on January 17, 2006 at 1:37 PM | PERMALINK


At this link --

http://legalaffairs.org/howappealing/SupremeCourtCRSReport.pdf --

you'll find a report for Congress prepared by the Congressional Research Service, entitled The Supreme Court's Overruling of Constitutional Precedent: An Overview, and dated November 29, 2005.

Posted by: Tyrone Slothrop on January 17, 2006 at 1:38 PM | PERMALINK

Bush v. Gore.

And Roe won't end with a bang, but with a whimper. The "unwashed masses," in a frenzy of the boogey-man from Iraq about to rape and kill him, won't even notice.

Posted by: Gore/Obama '08 on January 17, 2006 at 1:39 PM | PERMALINK

We have witnessed a court morphing, that is entering a new stage. It is not a question of the current court development; it is the developed future court in which reversals will take place.

Posted by: Citizen80203 on January 17, 2006 at 1:43 PM | PERMALINK

um, Kevin, not to be pedantic (ok, maybe a little)...but West Coast Hotel did not overturn Lochner...it did explicitly overrule Atkins.

technically speaking, Lochner is still good law (if that specific fact pattern ever came up)...its simply been distinguished to death (the result is the same...but there is a technical distinction)

Posted by: Nathan on January 17, 2006 at 1:44 PM | PERMALINK

Boronx: Bush v. Gore was not the first time that a SC decision was written to be narrowly construed.

Posted by: Nathan on January 17, 2006 at 1:46 PM | PERMALINK

What about the death penalty cases?

Posted by: Jeremy on January 17, 2006 at 1:46 PM | PERMALINK

Korematsu.

Posted by: Roxanne on January 17, 2006 at 1:48 PM | PERMALINK

Roxanne:

I doubt Korematsu has been reversed...only because I doubt anything has come up that explicitly relied solely upon Korematsu.

Posted by: Nathan on January 17, 2006 at 1:51 PM | PERMALINK

In terms of impact (I'm not a lawyer), I'd say Bush v. Gore which not only took one's breath away -- having the Supreme Court firmly tell a state supreme court "you're nullified." That preemption will probably resonate as much as any overturning of precedent.

Posted by: PW on January 17, 2006 at 1:52 PM | PERMALINK

Brittny v. Keven

Posted by: skibumlee on January 17, 2006 at 1:52 PM | PERMALINK

In U.S. v. Lopez (1995), the Rehnquist Court modified 50 years of Commerce Clause precedent. In 1937, the Court upheld the National Labor Relations Act, ushering in an era in which Congress had the power to regulate the activity of the states in everything from civil rights to environnmental law to trade unions. It stayed that way until 1995 when Lopez changed the landscape. Under Lopez, Congress can only regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce.

Following Lopez, however, the state's rights side of the Court fractured. As a result, Congress's authority hasn't been challenged under this new doctrine in any meaningful way.

Anyway, the reason I brought this up is because of today's phyisician assisted suicide decision. Last year's medical marijuana decision seemed a real lowpoint for the "new federalism" of the Rehnquist court...but today's holding - that the federal government does NOT have the right to regulate drugs used for suicide - seems to breathe new life into things.

Posted by: owenz on January 17, 2006 at 1:52 PM | PERMALINK

PW:

um, the SC overturns state supreme courts all the time. neither is that germane to Kevin's question.

owenz: I don't believe Lopez explicitly overruled any SC precedents.

Posted by: Nathan on January 17, 2006 at 1:55 PM | PERMALINK

I'm going to second Lawrence and also note that it meets the definition of "seminal" in two ways...

Posted by: Richard Campbell on January 17, 2006 at 1:56 PM | PERMALINK

Yep, I think you're right. "Korematsu" wasn't overturned. But his conviction was overturned by a CA court.

Posted by: Roxanne on January 17, 2006 at 1:56 PM | PERMALINK

Boronx: Bush v. Gore was not the first time that a SC decision was written to be narrowly construed.

Nathan, "narrowly construed" is one thing -- as you correctly note, given the same pattern of facts, there's nothing wrong with applying a "narrowly construed" ruling. Specifically disclaiming use as a precedent, especially in such an unprecedented case, is something else entirely. My perception is that said disavowal was at the very least a novel occurrence, not to mention a dead giveaway that the Court was aware their ruling, designed to achieve a desired outcome, stank like week-old fish.

Now, since surely you didn't mean to be misleading with your changing the subject to "narrowly construed," can your fine lawyer's mind cite other SCOTUS cases that were explicitly disavowed from use as precedent?

Posted by: Gregory on January 17, 2006 at 1:59 PM | PERMALINK

I'd agree with Lawrence overturning Bowers as the last major one. Before that one might look at Employment Division v. Smith (1990), with a decision by Scalia, as representing a fairly significant shift in the Court's approach to the Free Exercise clause.

Posted by: Nate on January 17, 2006 at 2:04 PM | PERMALINK

Finders v. Keepers?

Ha.

Of course there's stare decisis and then there's super stare decisis. Don't foget about super-duper stare decisis. Which form of stare decisis are you refering to particularly?

Posted by: gq on January 17, 2006 at 2:04 PM | PERMALINK

Finders v. Keepers?
You forgot Black v. White and Spy v. Spy.

Posted by: on January 17, 2006 at 2:05 PM | PERMALINK

There are two recent examples of signifcant overrulings in the death penalty area: Atkins v. Virginia (2002) (8th amendment prohibits execution of offenders with mental retardation, overruling Penry v. Lynaugh (1989)); and Roper v. Simmons (2005) (8th amendment prohibits executing offenders who were under age 18 at the time of the crime, overruling Stanford v. Kentucky and Wilkins v. Missouri (both 1989)). "Seminal," as several people have pointed out, is of course in the eye of the beholder.

Posted by: Rob Owen on January 17, 2006 at 2:06 PM | PERMALINK

Truth v. Bush?

Posted by: ckelly on January 17, 2006 at 2:07 PM | PERMALINK

OReilley v. NoSpin?

Posted by: lib on January 17, 2006 at 2:08 PM | PERMALINK

Lopez was a huge reversal, but they didn't explicitly overrule anything. Lawrence of course.

But the point you're getting at seems valid - the Court has only rarely overturned "big time" precedents. the preferred approach is usually the lopez one - steady undermining over time. this is sort of what happened with brown, which was preceded by a steady line of cases undermining Plessy

this also gets to a larger point - which is that race is such a distinctive issue (with such a distinctive history) that the race cases are usually not good foundations upon which to argue, or to build a constitutional philosophy.

the seminal Court decisions involving race have pretty clearly been straight-up results driven opinions. I don't think that's a bad thing - race was such a problem (and the legislative process pre-VRA was so flawed), that the Court needed to make an exception here and just do what was right.

but in general, i'm wary when either the so-called left or right uses brown or any other seminal race case as a foundation for anything. the reasoning that got the Court there doesn't need to extend far from the racial context

race is different.

Posted by: publius on January 17, 2006 at 2:13 PM | PERMALINK

Gregory: the actual text of Bush v. Gore can be found here:

http://supct.law.cornell.edu/supct/html/00-949.ZPC.html

the money quote is: "The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

the foregoing is not an "explicit disavowal" for precedential purposes. rather, a party could use Bush v. Gore as precedent for the proposition that recount procedures must meet equal protection requirements. there is nothing in the decision that indicates otherwise. in other words, your description of Bush v. Gore is inaccurate.

Posted by: Nathan on January 17, 2006 at 2:14 PM | PERMALINK

I don't remember the name of the case, but the one that overturned criminal prosecution of same sex consensual sex. Sodomy laws were upheld in a Georgia case in 1986, and that ruling was overturned in a Texas case in 2004.

Posted by: Paul on January 17, 2006 at 2:14 PM | PERMALINK

Bush v. Gore nullified the whole idea of precedent. Threw it out the window. Any case brought up as precedent can now be construed to be unique to its own circumstances and therefore not applicable, or in fact even harmful, to the case at hand.

Posted by: reef the dog on January 17, 2006 at 2:17 PM | PERMALINK

Paul: Sodomy laws were upheld in a Georgia case in 1986

Bowers v. Hardwick

that ruling was overturned in a Texas case in 2004

Lawrence vs. Texas

Posted by: alex on January 17, 2006 at 2:20 PM | PERMALINK

Nathan: Even when there's no legal -- constitutional -- basis for overturning a decision?

Posted by: PW on January 17, 2006 at 2:24 PM | PERMALINK

PW: people disagree over SC decisions all the time...disagreeing over the SC legal interpretation given for its decision. that's not exactly unusual.

reef the dog: not really. anytime that you're arguing for a party you always assert that the cases on the other side are not directly on point and distinguishable. that's good lawyering.

Posted by: Nathan on January 17, 2006 at 2:28 PM | PERMALINK

Nathan: the SC overturns state supreme courts all the time

How disingenuous of you.

SCOTUS overrules state courts if it's a matter of the (selectively applied) doctrine of incorporation, or in cases of federal vs. state authority.

Bush v. Gore broke new ground though. The staunch federalists of the Rehnquist court took it upon themselves to resolve two conflicting Florida laws, with no federal issue involved.

The finding that the recount procedure violated the equal protection clause of the 14th amendment had nothing to do with the "remedy".

That "remedy" was simply "stop counting, our man wins". At least in other cases they had the decency to dress up their partisanship in fancy sounding legal doctrines.

Posted by: alex on January 17, 2006 at 2:30 PM | PERMALINK

Actually, it would be really interesting to know of any changes in Americans' view of the Supreme Court after Bush v. Gore. Both the presidency and Congress have experienced a loss of respect. To what extent has the Supreme Court suffered the same fate? I have a couple of Republican friends who shuddered at the decision and know of others who felt the same way, so it's not just some fantasy of the left that something went badly wrong with that decision.

Posted by: PW on January 17, 2006 at 2:33 PM | PERMALINK

Alex:

the federal issue and the fancy sounding legal doctrine was equal protection.

I'm not being disingenuous at all. I happen to think that the SC should have avoided the matter and denied cert as a "political question" (I also think the Florida SC decision was woefully poor and partisan (as with the U.S. SC)....but the same should have been done for Roe for that matter. But they didn't. One can speculate as to motivations, etc. all you want. But it doesn't change the fact that Bush v. Gore, in terms of legal significance, was very minor.

Posted by: Nathan on January 17, 2006 at 2:35 PM | PERMALINK

Finders v. Keepers?

Wasn't this case actually Losers v. Finders? I believe it found for the plaintiff and was upheld in the appeal, Weepers v. Keepers.

Posted by: brent on January 17, 2006 at 2:37 PM | PERMALINK

Nathan: the federal issue and the fancy sounding legal doctrine was equal protection

I've already made this pretty clear, but I'll try again. The equal protection argument (7-2) was reasonable, if debatable. What the hell did that have to do with the remedy (5-4)?

Bush v. Gore, in terms of legal significance, was very minor

SCOTUS: we're crooked! Fuck you if you don't like it.

I'll leave judgement on "legal significance" to you, but I think it's pretty important to the country.

Posted by: alex on January 17, 2006 at 2:40 PM | PERMALINK

And Roe won't end with a bang, but with a whimper. The "unwashed masses," in a frenzy of the boogey-man from Iraq about to rape and kill him, won't even notice.
Posted by: Gore/Obama '08 on January 17, 2006 at 1:39 PM | PERMALINK

Maybe they'll allow an exception (in abortion law) for women who are raped by islamic terrorists?

Posted by: Osama_Been_Forgotten on January 17, 2006 at 2:41 PM | PERMALINK

I'm with Atrios. Overturning Bowers was a big deal.

Posted by: Nicholas Beaudrot on January 17, 2006 at 2:44 PM | PERMALINK

alex: the remedy argument was that no other remedy was possible. btw, I agree that that was weak...

with that said, its not exactly novel for the SC to indulge in weak remedy instructions...especially on economic issues.

Posted by: Nathan on January 17, 2006 at 2:46 PM | PERMALINK

You're all forgetting Brady v. Oakland, in which the infamous "tuck rule" was used to rule in the plaintiff's favor, thus allowing the Patriots to go on to win that Super Bowl, and then two of the following three. Pretty important, I'd say.

Posted by: Alek Hidell on January 17, 2006 at 2:47 PM | PERMALINK

The last huge case was Roe vs Wade. It took away the right of legislatures to establish law on abortion, which was legal in most states at the time. It has poisoned the debate about the Court since.

Lawrence vs Texas was major only in that it put to rest obsolete laws but it opened a door that we haven't seen the end of yet. It was not overturning a huge body of law like Roe vs Wade, though.

Posted by: Mike K on January 17, 2006 at 2:56 PM | PERMALINK

Kramer vs. Kramer

Posted by: DennisBoz on January 17, 2006 at 3:02 PM | PERMALINK

"West Coast Hotel overturned Lochner"

Technically, West Coast Hotel overturned Adkins v. Children's Hospital, 261 U.S. 525 (1923).


"West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) was a decision by the Supreme Court of the United States that upheld the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital, 261 U.S. 525 (1923)."
http://www.answers.com/topic/west-coast-hotel-co-v-parrish?linktext=West%20Coast%20Hotel%20Co.%20v.%20Parrish

But, Adkins was in the line of decisions that began with Lochner in 1905.

My favorite all time reversal of course is

UNITED STATES v. CAROLENE PRODUCTS CO., 304 U.S. 144 (1938)
http://www.agh-attorneys.com/4_us_v_carolene_products_company.htm

where the Court signaled in footnote "4" that its "switch in time" movement away from scrutinizing the Constitutionality of legislation would not apply where a "specific prohibition of the Constitution" was implicated.
"[ Footnote 4 ] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369 , 370 S., 51 S.Ct. 532, 535, 536, 73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, decided March 28, 1938."

Posted by: Robert on January 17, 2006 at 3:04 PM | PERMALINK

"the seminal Court decisions involving race have pretty clearly been straight-up results driven opinions. I don't think that's a bad thing - race was such a problem (and the legislative process pre-VRA was so flawed), that the Court needed to make an exception here and just do what was right."

There was that little matter of the post-Civil War amendments that had something to do with affirmative remedies as well. It amazes me that people who think the intent of the founding fathers is imperative in interpreting the constitution also think that the intent of the 14th and 15th amendments was to make us a "race neutral" society. There was one purpose, and one purpose only, for those amendments: to provide blacks with an avenue for redress for centuries of slavery and discriminiation.

Posted by: brewmn on January 17, 2006 at 3:17 PM | PERMALINK

[After Bush v. Gore [a]ny case brought up as precedent can now be construed to be unique to its own circumstances and therefore not applicable, or in fact even harmful, to the case at hand.

Uh-huh.

The key case in the new 'results-oriented-jurisprudence'.

Posted by: Davis X. Machina on January 17, 2006 at 3:22 PM | PERMALINK

I think you will find that all or nearly all of the seminal decisions overturning long standing precident have involved expanding individual rights, not contacting them. If Roe v. Wade is overturned directly, it will be somewhat unique in that it will reflect a diminishment of individual liberty.

Posted by: Ron Byers on January 17, 2006 at 3:24 PM | PERMALINK

Joe Versus the Volcano
Billy the Kid versus Dracula

Freddy Vs. Jason
Hercules vs. the Vampires
Earth vs. the Flying Saucers
The Navy vs. the Night Monsters
Santo vs. Frankenstein's Daughter
Canadian Mounties vs. Atomic Invaders
Captain Scarlet vs. the Mysterons
Blondes vs. Brunettes

King Kong vs. Godzilla

which spawned the companion cases...

Godzilla Versus the Sea Monster
Godzilla vs. Mothra
Godzilla vs. Destroyer
Godzilla vs. Mechagodzilla
Godzilla vs. King Ghidorah
Godzilla vs. Cosmic Monster
Godzilla Vs. Monster Zero
Godzilla vs. the Smog Monster

All Gamera cases are of course redundant

Posted by: DennisBoz on January 17, 2006 at 3:32 PM | PERMALINK

I agree that US v. Lopez was the most recent overturning decision, but it really hasn't had any major lasting impact in following case law. However, as far a decision overturning established precedent that then went on to shape the court's decisions for years to come, you can't overlook Brown v. Board of Education which specifically overturned Plessey v. Ferguson's holding that separate but equal laws were valid under the 14th amendment.

Posted by: blondie on January 17, 2006 at 3:34 PM | PERMALINK

If Roe v. Wade is overturned directly, it will be somewhat unique in that it will reflect a diminishment of individual liberty.

Though Roe didn't do much for fetal liberty.

Posted by: DennisBoz on January 17, 2006 at 3:34 PM | PERMALINK

Admit it. You're just asking to find out how many of us know our law stuff, aren't you? Now that I'm not teaching it, I don't pay close attention, though. But if your point is to try to figure out how much judges are likely to go against their own personal values/politics based on the drag of stare decisis, you only need to look at Bush v. Gore to see that, in this Court at least, politics trumps.

Posted by: catherineD on January 17, 2006 at 3:34 PM | PERMALINK

Dennis, you forgot Aliens vs. Predator!

Posted by: Osama_Been_Forgotten on January 17, 2006 at 3:48 PM | PERMALINK

Lawrence v. Texas

Posted by: Rosey Palmer on January 17, 2006 at 4:00 PM | PERMALINK

If the new SC is prone to upsetting settled law, let's make a list of decisions that need to be reviewed.

One long time decision that will need to be reconsidered is the one from the 1880s that allows a corporation to be a legal person.

Posted by: slanted tom on January 17, 2006 at 4:02 PM | PERMALINK

Careful, slanted tom. With Scalia, Alito, Roberts, Thomas, and one more vote, you may not like that reconsideration. Knowing that crew, they may decide that only corporations get to be legal persons. ;)

Posted by: MJ Memphis on January 17, 2006 at 4:16 PM | PERMALINK

Let's not forget the case of the century, Roe v. Brown, where the winner of Roe v. Wade faced off against the winner of Brown v. Board of Education.

sorry, I'm just ripping off Jon Stewart.

Posted by: Ringo on January 17, 2006 at 4:18 PM | PERMALINK

slanted tom:

you really have no clue what you're talking about.

Posted by: Nathan on January 17, 2006 at 4:20 PM | PERMALINK
you really have no clue what you're talking about.

The richest post on the thread.

Posted by: SavageView on January 17, 2006 at 4:23 PM | PERMALINK

Alito already described his strategy in the 1985 memo: it's not necessary to directly overturn Roe v. Wade. Instead, simply whittle away at the edges. Just uphold state restrictions that effectively deny access to abortion, as long as those restrictions don't explicitly ban abortion. The state can require the woman and her physician to do six impossible things before breakfast if she wants an abortion, and if the result is that there are no providers in the entire state, so be it.

Posted by: Joe Buck on January 17, 2006 at 4:25 PM | PERMALINK

wasn't brown v. boe limited only to the context of education? i thought that plessy remained, even up to kennedy's citation of harlan's dissent in romer v. evans.

Posted by: astro on January 17, 2006 at 4:29 PM | PERMALINK

In 1963, Gideon v. Wainwright overturned Betts v. Brady. Gideon guarantteed right to counsel in criminal cases.

Posted by: Nick Karambelas on January 17, 2006 at 4:43 PM | PERMALINK

Lopez overruled Garcia which overruled National League of Cities. All of those cases were within 20 years of each other, so it wasn't longstanding in any sense.

Posted by: pj on January 17, 2006 at 4:54 PM | PERMALINK

Nathan: . . . you really have no clue what you're talking about.

Self-analyziing again, are you.

Or just looking in the mirror.

Posted by: Advocate for God on January 17, 2006 at 4:57 PM | PERMALINK

Lawrence v. Texas is a run away winner here if you read it, as the minority opinion did, as a reversal of the line of cases beginning with Carolene and a reversion to the reading of Lochner.

I think that is too broad a reading but, even short of that, Lawrence may signal a sea change in the approach of the court to individual liberties. Since Roberts signalled clearly that he disapproved the decision (by citing Lochner as an example of a very bad decision), the addition of Alito probably means that the line of cases that might have followed from Lawrence will be severely pruned before they even bud.

Posted by: ursus on January 17, 2006 at 5:07 PM | PERMALINK

Could anyone explain some of the (real) cases here and why they are thought to be significant? I mean, other than Roe v. Wade and Bush v. Gore, which I have a pretty good grasp of.

Although I would like it if Nathan could explain, at least for laypeople, why doesn't think Bush v. Gore didn't really change much, or whatever point your trying to make.

Posted by: Dr. Morpheus on January 17, 2006 at 5:08 PM | PERMALINK

Dr. Morpheus:

Bush v. Gore didn't overturn anything.

It did provide precedent for the use of equal protection arguments in terms of voting and recount mechanisms -- but that was always a possibility and I would think such arguments have been made before (obviously they have been in the larger electoral context)...in other words, whatever its political ramifications...Bush v. Gore is of little legal significance.

Posted by: Nathan on January 17, 2006 at 5:33 PM | PERMALINK

Let's hope the next one to be reversed is the worst decision in the court's history:

Bush V. Gore

Posted by: Vinnie on January 17, 2006 at 5:51 PM | PERMALINK

"Bush v. Gore is of little legal significance."

I would disagree. As a direct result of this decision, the country is now living under the Bush corollary to the Constitution, which states that the President has the inherent authority to do whatever the hell he wants on any matter vaguely related to national security, with no oversight.

Posted by: Violet on January 17, 2006 at 6:00 PM | PERMALINK

Ever since the recent examination of the Florida ballots and the GAO examination of 2004 election in Ohio, it's been clear that few people care that the country no longer exists.

2 (two!) stolen elections. In a row. For the most powerful post in the history of the planet. And it gets yawns.

By the way, your house is on fire, your dog is on the roof, and the teenager down the street just stole your car and is using it to runaway with your daughter to Tijuana.

Posted by: Jeffrey Davis on January 17, 2006 at 6:11 PM | PERMALINK

Enjoyable thread - I particularly like Spy v. Spy. :)

It seems clear to me that Lawrence is the most recent major reversal, explicitly saying Bowers was wrongly decided.

I'm curious why no one has mentioned Griswold, though I don't know the decision well enough; it seems to me that so much flows from it (such as Roe, and even Lawrence, really), it was in its way quite major.

I also wonder if anyone remembers 1st Amendment and press law better than I do... isn't there a msjor reversal in Freedom of the Press to cite?

Posted by: weboy on January 17, 2006 at 6:26 PM | PERMALINK

The staunch federalists of the Rehnquist court took it upon themselves to resolve two conflicting Florida laws, with no federal issue involved.
In case anybody cares, I agree with this. The proper remedy would have been for the Florida legislature to cashier the entire FL Supreme Court, then send a slate of Bush electors to DC. (Because he was the certified winner according to the rules of the FL legislature)

But the US Supreme Court had no business in it.

Posted by: conspiracy nut on January 17, 2006 at 6:42 PM | PERMALINK

Conspiracy Nut;
I think they were right in the 7 to 2 decision to stop the FL supreme court from changing the rules. That is against the constitutional role of state legislatures in setting the rules. I wish they had stopped there because it has led to a lot of nonsense about "selected" etc. Bush would still have won but Gore might have kept his sanity.

Posted by: Mike K on January 17, 2006 at 6:50 PM | PERMALINK

Since the real point of this discussion is Roe vs. Wade, I want to expand on the point made by Ron Byers:

"If Roe v. Wade is overturned directly, it will be somewhat unique in that it will reflect a diminishment of individual liberty."

Hes probably right, and I think even more relevant is that previous major reversals of precedent (Im thinking particularly of Brown v. Board and Lawrence v. Texas) reflected a change in the thinking of a majority of society. Even though the courts are theoretically insulated from politics and public opinion, neither reversal could have taken place if public opinion regarding race relations and sexual orientation, respectively, hadnt experienced a major shift in most of the country.

With public support for Roe even stronger today than it was 1973 (more than 70% do not want it overturned), I think an overturn of Roe would be truly unique. That doesnt mean it couldnt happen.

Posted by: Common Knowledge on January 17, 2006 at 6:56 PM | PERMALINK

conspiracy nut: The proper remedy would have been for the Florida legislature to cashier the entire FL Supreme Court, then send a slate of Bush electors to DC. (Because he was the certified winner according to the rules of the FL legislature)

Clearly they should have contacted you before they spent all that money on fancy lawyers.

conspiracy nut says forget all that silliness about Florida State Courts ruling on Florida State Law (as required by the Florida State Constitution).

Forget the rule of law (IOIYAR): all hale King W and his wise advisor "nut"!

Posted by: alex on January 17, 2006 at 7:15 PM | PERMALINK

I seriously doubt that Roe will be overturned in one stunning decision; this court is extremely political, and I am sure that they understand that overturning Roe is the fastest way to guarantee a Democratic majority - and this court is the most clearly identifiable Conservative Republican court since the thirties. I would think that they would slice and dice Roe with a thousand small cuts. There is precedent for this belief.

Felix Cohen, in his seminal work on federal Indian law, calls Native tribes the "canary in a mineshaft." For the past fifteen years or more, the Supreme Court has been slowly stepping away from the concept of tribal sovereignty, slowly limiting tribes and taking away rights just as the tribes begin to gather sufficient financial clout to influence elected political officials (As a side note, this is an interesting element of the Abramoff scandal that has not really been explored with any level of understanding). I would suggest that this process, which has largely gone unnoticed outside of the Indian law community, is exactly what the Court will do to abortion, and many other things that may have once been declared inviolate.

Indian attorneys have, for ten years, known that this Court is dangerous and should be avoided at all costs. To all the other attorneys out there who don't represent rich white men and companies, I would say, "Welcome to the reservation".

Posted by: cstevenhager on January 17, 2006 at 7:21 PM | PERMALINK

I think that it happened in 1963 when Gideon v Wainwright (establishing the right to a lawyer when accused of a felon) explicitly overruled Betts v. Brady.

Posted by: Bostoniangirl on January 17, 2006 at 7:46 PM | PERMALINK

Since Roe v. Wade (I was 11 at the time), the only SC decisions I can recall as making an impact on national consciousness are the Watergate decision, the Baklee (sp?) on affirmative action, and Bush v. Gore. Not denying significance or impact of others, but they're under the radar screen.

Posted by: sal on January 17, 2006 at 8:03 PM | PERMALINK

The most recent big overturning of precedent came in the great case of Crawford v. Washington, 541 U.S. 36 (2004) which overturned Ohio v. Roberts, 448 U.S. 56 (1980) which had allowed for the use of hearsay in criminal trials if it was based on a "firmly rooted hearsay exception" or bore "significant indicia of reliability". The Supreme court in a 7-2 decision written by Justice Scalia cracked down on the amorphous nature of this standard (which allowed all kinds of nonsense to let cops testify as to what witnesses who would not testify had told them because the cops were better witnesses).

The Court in Crawford instead held that if the statements were "testimonial" (a term they did not properly define) then the statements could not be admitted unless the witness was both unavailable and the accused had a chance to cross-examine the person who made the statement. It is amazing it did not get more attention becuase it is one of the few pro-defendant rulings to come out of the Court outside of jury trial rights in the last decade.

Posted by: jalrin on January 17, 2006 at 8:30 PM | PERMALINK

Coyote v. Acme
Product liability

Posted by: davids on January 17, 2006 at 8:33 PM | PERMALINK

Nathan wrote:

"I doubt Korematsu has been reversed...only because I doubt anything has come up that explicitly relied solely upon Korematsu."

Posted by: Nathan on January 17, 2006 at 1:51 PM | PERMALINK


That case came up several times in the Alito hearings. I agree, it hasn't been overturned because no similar case has, or is likely to, come up since then. It's a shame such cases can't just be wiped out, but there it sits like a wet turd, drying on the church sidewalk on a hot Sunday afternoon. Nobody wants to mention it for fear of having to do something about it.

Posted by: MarkH on January 17, 2006 at 8:39 PM | PERMALINK

During the overturning of Kevin Drum's Statist poodle company Vs Real political animal's International, seminal material was deposited on the leg of the judges by Drum. However this was not ruled the act of a genuine political animal - more like that of a California leg hound and tame slavering lickspittle little lap dog for the state.
Political animals intercommunal ( Huey Newton )overturned years of dribbling inanities by the Kevin Drum State's poodles corporation.
The precedent was established that genuine political animals represent a real ongoing threat to the state and it's cheap fake plastic imitation ' opposition' as represented by Drum. A decision for the ages as immediately achknowledged on the Interzone ( Burrough's )

Posted by: professor-rat on January 17, 2006 at 8:44 PM | PERMALINK

How about Lopez changing the course of commerce clause jurisprudence?

Posted by: Vergasy on January 17, 2006 at 8:46 PM | PERMALINK

Korematsu's conviction was overturned in the 1980s in lower federal courts on the grounds of manifest injustice (for factual errors, I believe).

I vote for Lawrence as well.

Posted by: RM on January 17, 2006 at 8:58 PM | PERMALINK

United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), was the Rehnquist court's successful assault at the broad construction of congress' legislative powers under the commerce clause.

Rehnquist's gem, National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), tried to limit the commerce power with the tenth amendment. It was a poorly reasoned decision and unwieldy in practice. It was overruled in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). But Big Bill and his right-wing, corporate-power colleagues waited patiently for a change in membership of the court and the right case in which to declare that congress' commerce power had limits. They got it in Lopez.

The decision in Lopez did not reverse but effectively restrained the New Deal interpretation of the commerce clause. Congress itself had more or less restrained itself politically anyway, so it wasn't a huge decision.

West Coast Hotel overruled Lochner whether the court explicitly said so or not. Who said so? Why none other than Chief Justice Rehnquist in Riley v. National Federation for the Blind, 487 U.S. 781, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988), fn. 1, Rehnquist, CJ., dissenting. There is no basis for arguing that Lochner is "still good law." That is just sophistry.

Posted by: James E. Powell on January 17, 2006 at 9:39 PM | PERMALINK

Cheney,

Roe v. Wade isn't sitting on any sidewalk, it's one of the most animating issues in American politics. It's more like a dog without a leash that is capable of biting either Republicans or Democrats in the ass.

The gravamen of the decision is that there are places where even the king's writ will not run. That's a pretty important thing if you care about personal freedom. If you don't care about personal freedom, well then, the hell with supreme court decisions, the bill of rights and any other worthless pieces of paper. Whatever the most powerful people want is what we all get. Okay?

Posted by: James E. Powell on January 17, 2006 at 10:22 PM | PERMALINK

http://www.landmarkcases.org/index.html

http://en.wikipedia.org/wiki/Landmark_decision#Landmark_decisions_in_the_United_States

A couple of links for further research....

Posted by: pzykr on January 17, 2006 at 10:33 PM | PERMALINK

I vote for Lawrence vs. Texas as well. Not because of whether it would affect a large percentage of the population, but because of the vehemence with which the majority over-ruled Bowers. The majority did not mince words, and was not kind to the Bowers decision.

Posted by: raj on January 17, 2006 at 10:44 PM | PERMALINK

There is an Antitrust case soon to be decided which will reversed a long-standing (50 yrs) presumption that patents confer market power, in the context of a tying arrangement.

The original case was *International Salt*, and the current case is *Illinois Tool*

Look for it soon. The Law & Econ folks have been salivating about this for years, the argument didn't go well for Kathleen Sullivan (who argued for the original plaintiffs in the suit -- just days before the news stories about her flunking the California bar after ending her tenure as Stanford Dean & returning to practice @ Quinn Emmanuel).

Posted by: J on January 17, 2006 at 11:00 PM | PERMALINK

I also vote for Lawrence (Lopez, Bush v. Gore, and many others mentioned here didn't overrule anything). Another important case is Adarand Consructors, an affirmative action case that overruled Metro Broadcasting v. FCC. (Korematsu, incidentally, has never been overruled - in fact, it is the first case in which the "strict scrutiny" formulation appears for racial classifications, though it was obviously not applied correctly in that case.)

And I don't agree with those who say that the conservatives on the Court are too politically savvy to overrule Roe. They came within one vote of doing just that several years ago. Now they've lost Justices White and Rehnquist, so they need Roberts and Alito just to get back to four, so it's not going to happen soon (and I think it's possible that Roberts doesn't want to overrule). But don't be too surprised if it happens if Bush gets to fill another seat.

Posted by: David on January 17, 2006 at 11:10 PM | PERMALINK

pot v. kettle

Posted by: punaise on January 18, 2006 at 1:06 AM | PERMALINK

It's a mistake to believe that Bush appoints supreme court justices with the intent to overrule Roe. His targets, the right wing's targets, are the New Deal decisions and the whole mass of corporate regulation that was enabled by those decisions.

Posted by: James E. Powell on January 18, 2006 at 1:56 AM | PERMALINK

Now, does Andrea Yates get unfettered freedom, or not?

I don't think the people of any state, or the country as a whole, have reached anything like a clear understanding of mental illness, nor a clear consensus on what ought to be done when mentally ill people kill other people.

But what does that have to do with anything we were talking about?

NB - No one has unfettered freedom.

Posted by: James E. Powell on January 18, 2006 at 3:07 AM | PERMALINK

I don't know if it was 'seminal', but Roper v. Simmons overturned a directly on-point previous decision on the death penalty. The previous decision was well in line with the entire history of the United States. The Roper decision, ummm not so much.

The death penalty seems an especially fruitful area for those who would overturn precedent--with judges like Brennan and Marshall advocating the ridiculous notion that the Supreme Court completely outlaws the death penalty.

Posted by: Sebastian Holsclaw on January 18, 2006 at 3:43 AM | PERMALINK

Don't precedents get too much credit anyway? Why should we be so sure that those who made that earlier judgment knew what they were doing?

Posted by: Neil' on January 18, 2006 at 9:58 AM | PERMALINK

Mike K: I think they were right in the 7 to 2 decision to stop the FL supreme court from changing the rules.

It is interesting that conservatives like Mike K continue to promote the falsehood that the FL supreme court tried to change the rules, when it was in fact Bush and his campaign that tried to change the rules adopted by the Florida legislature by getting those rules declared unconstitutional on spurious and hypocritical grounds.

Well, Mike K's willingness to lie has never been much in doubt.

Posted by: Advocate for God on January 18, 2006 at 10:05 AM | PERMALINK

David, the SC has never been within a vote of overturning Roe. I realize that NARAL might want you to believe that, but it's simply not the case.

J: good point. Illinois Tool is of a lot of interest in my line of work. To be more exact, it likely will remove the presumption of market power attached to a patent.

Posted by: Nathan on January 18, 2006 at 11:44 AM | PERMALINK

Can I get back to you in a year about that?

Posted by: the answerman on January 18, 2006 at 1:43 PM | PERMALINK

Roe v. Wade has already been overturned, in a sense. The decision determined that individual states have the right to make laws restricting abortion in those cases where the fetus is viable.

Subsequent rulings have essentially overturned this aspect of Roe v. Wade by ruling time and again that "the preservation of the life or health of the mother" loophole is a blank check. It is clear that states have absolutely no right to restrict abortions, regardless of what Roe v. Wade implies.

It's the progeny of Roe v. Wade that would have to be overturned.

Posted by: 512thirteen10 on January 20, 2006 at 3:59 PM | PERMALINK




 

 

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