Wednesday, May 28, 2008
Which is More Likely: Overturning Roe or Attacking Iran?
Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.
Of course, what Professor Balkin is predicting is the way the courts normally work, i.e., rather than frontally overrule cases, judges hollow them out. I am not sure what the current situation is, but when I was in law school (class of 1984), Shepard's showed that Plessy v. Ferguson had been "questioned" many times, but never "overruled." So if Roe v. Wade meets the same fate, it won't be a nefarious novelty, but standard judicial practice.
Incidentally, you'll note that the Democrats haven't exactly been running on the kind of pro-choice platforms that would satisfy a radical feminist. Nor is it clear, more generally, that social issues are winners for the Democrats. So they may not be adverse to hollowing out Roe v. Wade either, as long as it's done gradually and in a way that preserves the abortion option for upper middle class women (i.e., first trimester abortions for women over 18, or whose parents consent, and who can pay for it themselves, must remain legal).
Abler minds than mine (notably JB and other bloggers here)have tried to forecast Supreme Court trends with varying successes.
To justify my own long record of inaccuracy, I have come up with a random-walk model, where stare decisis acts as a partial constraint, but party and presidential constraints are maximal at appointment but fade with length of incumbancy on the bench.
The result is short-term quasi-predictabilty and long-term uncertainty, if not to say unknowability-in-principle!
Using my dubious model, I come to similar conclusions as JB's. Roe will be with us for a while yet.
>President George H.W. Bush calculated (correctly) that the Democrats would not have the nerve to reject an African-American nominee to replace Thurgood Marshall.
Um, this glosses over a whole lot of sturm und drang that should not be disregarded. There was a large number of Democrats who were quite willing to oppose Thomas. He did not ease into his seat, as did Scalia.
I think that Maslow's Hierarchy of Needs is far more predictive of how this Court will rule than any other theory from starie decisis to religious / political bias.
This is a very bad time to teach Con Law....from BUSH v. GORE to BUCKEYE CHECK CASHING, INC. v. CARDEGNA, the Court has recognized exactly zero authority in State Constitutions and State Supreme Court rulings - albeit that the Court has changed since Bush v. Gore - Buckeye applies exactly the same cavalier approach to jurisprudence that makes Bush v. Gore our Dred Scott v. Sandford.
There are some problems with this account of Republican presidential motivations. First, Reagan didn't intend to appoint a Justice who would affirm Roe (or who would merely "weaken" it). He tried to appoint Robert Bork. Then he tried to appoint Doug Ginsburg. He only settled for an unknown when Democrats kept blocking his appointments. I don't see how you can pin Kennedy's last-minute change-of-heart in Casey on anything that Reagan even remotely intended.
Second, Roberts and Alito both paid lip service to Roe, but again, they know that any candor on Roe would get them immediately blocked. So it's very tenuous to suggest 1) that they will ever vote to affirm Roe (people who know Alito and Roberts doubt that this is the case), or 2) that if they vote in such a way, it will have been what Bush intended.
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