The Profound Effects of Justice O’Connor’s Retirement
on Apr 18, 2007 at 10:43 am
Back in July 2005, I posted to our “Supreme Court Nominations” subsite (now defunct) 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)
