First Monday in October, 2009

[Brown]

The US Supreme Court starts its new session next Monday. This year, the Court took the unusual step of hearing (or RE-hearing) one case with already, with Justice Sotomayor participating. (See this thread).

The Wall Street Journal has a pretty good summary of some of the cases. None looks too exciting to me. One of the cases, Salazar vs. Buono, concerns erection of a cross on federal land. Some observers are suggesting (with reason) that the determinative issue will be standing, rather than the merits of the case itself. We've seen such concerns in the recent Hein case (see this thread, where I identified two disturbing aspects in the Court's opinion: misuse of standing principles, and making a citizen's First Amendment rights impossible to enforce in court).

There is another concern (hinted at by the Journal) that some of the so-called "conservative" justices this term might try to scorch the Earth by overruling precedents that they don't like merely because they don't like them and merely because they have the votes to do so. These ... ahem ... gentlemen, who all told the public that they respected precedent, might expect that they will soon be outnumbered, or so the story goes, and so they will conspire to do as much damage as they can before they lose their slender majority.

 

[WildCat]

These ... ahem ... gentlemen, who all told the public that they respected precedent, might expect that they will soon be outnumbered, or so the story goes, and so they will conspire to do as much damage as they can before they lose their slender majority.

So you don't think any previous SCOTUS opinion should be overturned?

 

[Brown]

So you don't think any previous SCOTUS opinion should be overturned?

Rather than go inot a detailed response, I'll just reference a thread where we've been over the question before:

No holding of the Supreme Court is sacrosanct. If someone wants to make a case for overturning Roe (or Brown v. Board, or Marbury v. Madison), the judge's duty is to consider the merits of the properly presented arguments, and not dismiss them out of hand.
...
If an appeal about an abortion question comes up, for example, and the case can be disposed of on non-constitutional grounds or upon grounds that do not involve reexamining Roe, then arguments that Roe ought to be overturned are not really before the court and should not be addressed. This is an aspect of judicial restraint and judicial discretion: if an issue need not be addressed, it should not be addressed; if a constitutional issue can be avoided, it should be avoided.

 

[WildCat]

Rather than go inot a detailed response, I'll just reference a thread where we've been over the question before:

I know we've been through this before Brown, which is why I'm surprised you brought it up again.

Precedent is sacrosanct to some when it comes to Roe v. Wade, but they forget about Plessy v. Ferguson.

Personally, I think the Kelo v. New London decision was terrible and should be overturned.

 

[KoihimeNakamura]

I have to agree with that one (Kelo v New London)

 

[Brown]

As far as I know, no Kelo-type cases are on the docket this term, and it is unlikely that the Court will return to the issue for at least a few years.

Whether the Roberts Court of 2009 is going to go an overturning spree or not, we will have to wait and see. The practice of the Court in the past few years has been to find exceptions to previously existing rules, rather than to overrule the rules themselves. Perhaps the most well-known illustration of this phenomenon was the Court's handling of the "partial birth abortion" case (discussed in this thread). The Court did not overrule a precedent that had been decided a few years earlier, but instead took a convoluted and highly questionable path around the case, without expressly overruling it (or other previous decisions).

What had changed since Stenberg? Was the federal statute really drafted better, so as to avoid constitutional difficulty? That's a difficult argument to support. The Congressional shenanigans designed to get around Stenberg were exposed by the lower courts and were acknowledged even by the Gonzales v. Carhart majority. The Congressional action designed to avoid constitutional infirmity was arguably a sham.

What has changed is the Court's personnel. Justice O'Connor, who concurred with the Stenberg majority, is now gone. Justices Roberts and Alito are there, and their silent votes with the majority have produced the result.

Although the anti-abortion forces have reason to be dancing in the streets, there are a few points of note. First, Justice Kennedy does not seem to be inclined to overrule Roe or Casey. If overruling had been the crucial issue, the case would probably have gone the other way. It may be tempting to say that Roe and Casey are one step from being overruled, but that step is a mighty big one.

And indeed, overruling could have been the crucial issue, but it was not. In other words, the majority might well have said that Roe, Casey and Stenberg would require that the Act be struck down, unless these cases were overruled ... and then proceeded to do just that. Such a ruling would have been far more straightforward than Justice Kennedy's shallow and quirky analysis BUT it might not have had majority support. It would therefore seem plausible that Justice Kennedy could not bring himself to join the "overrule" camp, but neither could he bring himself to say that abortion rights have been "re-affirmed"; as a result, he used the awkward "assumed" wording.

In other words, if Justices Thomas, Scalia, Roberts or Alito had written the opinion, there is a pretty good chance that they wouldn't have gotten Kennedy's vote.

 

[Beerina]

whether a prosecutor can be sued for winning a conviction by procuring false testimony

Oh please god yes, let it be yes. I assume this is for knowingly doing so.

 

[WildCat]

The Wall Street Journal has a pretty good summary of some of the cases. None looks too exciting to me.

Well I'm excited about Chicago's handgun ban finally getting heard by the court.

 

[Skeptic]

So you don't think any previous SCOTUS opinion should be overturned?

When a liberal SCOTUS overturns a previous, conservative, opinion, that's "progress" -- as in the "gay marriage", "abortion rights", etc., issues; it is merely correcting a previous error. If we didn't have brave, groundbreaking judges like that, the argument goes, slavery would still be legal. However, when a conservative court ovreturns a previous, liberal, opinion, it's "doing as much damage as one can before they lose they slender majority".

Liberals should be allowed to overturn precedent; conservatives may not.

Simple, isn't it?

 

[Brown]

Yesterday, the Supreme Court decided to take another gun case.

The issue (according to media reports) is whether the principles of the Heller case (see this thread) will extend to the States. Stay tuned.

When a liberal SCOTUS overturns a previous, conservative, opinion, that's "progress" -- as in the "gay marriage", "abortion rights", etc., issues; it is merely correcting a previous error. If we didn't have brave, groundbreaking judges like that, the argument goes, slavery would still be legal. However, when a conservative court ovreturns a previous, liberal, opinion, it's "doing as much damage as one can before they lose they slender majority".

Liberals should be allowed to overturn precedent; conservatives may not.

Simple, isn't it?

Simple. And wrong.

I know the remarks were offered in a note of levity. I expect that we'll settle into a discussion that will be more thoughtful and reasonable, will not resemble cynical "talking points."