The Profound Effects of Justice O'Connor's Retirement

Marty Lederman

Back in July 2005, I posted to SCOTUSblog a list of precedents that were the most vulnerable in the wake of Justice O'Connor's retirement. The list is republished below. At the time, I wrote that the most important and most vulnerable of those precedents were in the areas of the Establishment Clause (especially the direct funding cases such as Mitchell v. Helms), affirmative action (and just watch what happens to Grutter later this Term), and abortion, where Stenberg v. Carhart was hanging by a thread. Today, the thread snapped, as a five-Justice majority upheld the federal "partial-birth abortion" prohibition.

In its decision today, the Court effectively overruled Stenberg's "undue burden" test for facial challenges to abortion-restriction statues (see pages 36-37 of the opinion).

[By the way: Justice Thomas in his concurrence suggests that he might have voted to invalidate the statute if a Commerce Clause challenge had been raised. In other words, if the Respondents had raised a Commerce Clause challenge, as well -- something they were wise not to do, not of least of which because statutes governing medical facilities plainly are valid Commerce legislation -- the Court might well have invalidated the statute, even though there would have been no majority of the Court for any particular ground of invalidation (a form of "Tidewater Transfer" disposition). That's not really very important, however, because the practical significance of today's case is not so much the fate of the federal statute itself as the evisceration of the Casey/Carhart undue burden test for facial challenges.]


My post from July 2005:

These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent.

Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.

McCreary County v. ACLU (2005) -- Ten Commandments displays

Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for Retaliation

Rompilla v. Beard (2005) -- standard of reasonable competence that Sixth Amendment requires on the part of defense counsel

Johanns v. Livestock Marketing (2005) -- assessments for government speech

Smith v. Massachusetts (2005) -- double jeopardy

Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions

Tennessee v. Lane (2004) -- Congress's Section 5 power

Hibbs v. Winn (2004) -- Tax Injunction Act

Alaska Department of Environmental Conservation v. EPA (2004) -- EPA authority under Clean Air Act to issue orders when a state conservation agency fails to act

McConnell v. FEC (2004) -- campaign finance

Groh v. Ramirez (2004) -- sufficiency of non-particularized search warrant

Grutter v. Bollinger (2003) -- affirmative action

Brown v. Legal Foundation of Washington (2003) -- no takings violation in IOLTA funding scheme

American Insurance Ass'n v. Garamendi (2003) -- presidential foreign-affairs "pre-emption" of state law

Stogner v. California (2003) -- ex post facto clause as applied to changes in statutes of limitations

Alabama v. Shelton (2002) -- right to counsel

Rush Prudential HMO v. Moran (2002) -- upholding state laws giving patients the right to second doctor's opinion over HMOs' objections

Kelly v. South Carolina (2002) -- capital defendant's due process right to inform jury of his parole ineligibility

FEC v. Colorado Republican Federal Campaign Committee (2001) -- upholding limits on "coordinated" political party expenditures

Zadvydas v. Davis (2001) -- prohibiting indefinite detention of immigrants under final orders of removal where no other country will accept them

Easley v. Cromartie (2001) -- race-based redistricting

Rogers v. Tennessee (2001) -- "judicial" ex post facto

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) -- state action

Stenberg v. Carhart (2000) -- "partial-birth abortion" ban

Mitchell v. Helms (1999) -- direct aid to religious schools

Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for student-on-student sexual harrassment

Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors

Richardson v. McKnight (1997) -- private prison guards not entitled to qualified immunity in section 1983 suits

Camps Newfound/Owatonna v. Town of Harrison (1997) (dormant Commerce Clause)

Morse v. Republican Party of Virginia (1996) -- provisions of the Voting Rights Act are constitutional as applied to choice of candidates at party political conventions

Schlup v. Delo (1995) (habeas, actual innocence)
Posted 10:34 AM by Marty Lederman [link]