an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Profound Effects of Justice O'Connor's Retirement
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
Been lurking for over a year...and this is the first time I've been frightened enough to actually ask a question. And it's simply this: Today's ruling is strictly a facial interpretation of the statute. Given the Roberts' Court penchant for ducking tough issues on prudential grounds, what are the odds now (that the Kennedy majority has sanctioned actual physical harm to a woman) that the SCOTUS would avoid a subsequent challenge on the grounds of mootness? Roe's reliance on the McKenna "capable of repetition" exception has always seemed so crucial to abortion rights. Today's opinion seems to beat a retreat from THAT aspect as well. Dark dark day.
Shades of Justice Marshall's dissent in Payne v. Tennessee?
The pro-life rhetoric (strongly rejected by the dissent) and attack on facial challenges (much practical effect, opening up the way for lots more dubious laws that will be struck down as applied, but on books for years since there are various situations when the laws might be okay) appears to be the core problem here.
The opinion, much to a few justices annoyance I'm sure, left open the way for 'as applied' challenges to the law. But, it also supplied a rational basis test for disputed health requirements, leaving partisan legislatures not a woman's doctor the ultimate power to decide cases where expert testimony leans the way toward allowing a procedure.
So, though some of the pro-choice rhetoric is over the top, the ruling is of real concern.
I’ll be writing on this issue for ACSblog, but I wanted to at least jot this idea down today. In his concurring opinion, Justice Thomas indicates that he might have struck down the abortion ban for exceeding Congress’s power under the commerce clause. Justice Scalia joined Thomas, but perhaps only on the grounds that Thomas was correct in stating that the commerce clause argument was not raised.
Thomas has a long-standing position limiting the commerce clause (Raich dissent, Lopez concurrence, e.g.). Given that, I don’t think Thomas was bluffing when he said he would have nullified the federal abortion ban on those grounds. That is, Thomas could have been a fifth vote to strike the law. Scalia might have been a sixth.
There is no question, either, that the liberal justices would have upheld the law under the commerce power and voided it under their abortion jurisprudence. That is, they were going to be four votes to strike it no matter what.
That means that Kennedy, whose vote was certain based on Stenberg where he voted to uphold a partial birth abortion ban by a state, did not have to be the swing vote.
At this point in my research, I believe strongly that the pro choice movement made a significant and decisive error in not raising a commerce clause challenge to this law. Instead of charging towards an almost certain 5-4 decision against them, they could have had a better shot at a 5-4 or better victory. Yes, the victory would have been without the benefit of a majority opinion, but they were heading towards that anyway.
Honestly, what could have motivated the pro choice movement to willfully fail their constituency so terribly? This is a question that must be answered.