The "horrible decisions that may be overturned now" list

[A18]

Grutter v. Bollinger -- upholding the affirmative action admissions policy of the University of Michigan Law School
Stenberg v. Carhart -- striking down Nebraska's partial-birth abortion ban
McConnell v. FEC -- upholding McCain-Feingold
Tennessee v. Lane -- holding that the Americans with Disabilities Act permissibly overrode state sovereign immunity

Anything else I'm missing?

[angus]

you're getting way ahead of yourself.  and probably overlooking anthony kennedy's swing position.  and I'm not sure any of those are before the court this session.  are they?  You're probably right that there will be some return to state/local sovereignty, but let's not get carried away.  But yeah, those four seem like reasonable targets for an enterprising young libertarian attorney with a nose for a good client to persue.  Look up Kennedy's vote on those if you really want to make an accurate prediction.

[A18]

you're getting way ahead of yourself.  and probably overlooking anthony kennedy's swing position.

Kennedy voted against the majority in all of those cases. O'Connor was the fifth vote in each of them.

And I didn't say how quickly they would be overturned. But if Roberts and Alito join Scalia, Thomas, and Kennedy, it's only a matter of time.

[Bandit3 the Worker]

Anything else I'm missing?

The only thing you're missing is knowledge of constitutional law.

[angus]

you're getting way ahead of yourself.  and probably overlooking anthony kennedy's swing position.

Kennedy voted against the majority in all of those cases. O'Connor was the fifth vote in each of them.

And I didn't say how quickly they would be overturned. But if Roberts and Alito join Scalia, Thomas, and Kennedy, it's only a matter of time.

I understand.  then yeah, I think you're right.  How about Brown v Board?

[○∙◄☻¥tπ[╪AV┼cVê└]

What a silly list. Anyways, if another wingnut gets on the court, they'll overturn Oregon's assisted suicide law, and restore Texas' anti-gay sex law, in addition to the obvious with Roe v. Wade.

[○∙◄☻¥tπ[╪AV┼cVê└]

you're getting way ahead of yourself.  and probably overlooking anthony kennedy's swing position.

Kennedy voted against the majority in all of those cases. O'Connor was the fifth vote in each of them.

And I didn't say how quickly they would be overturned. But if Roberts and Alito join Scalia, Thomas, and Kennedy, it's only a matter of time.

I understand.  then yeah, I think you're right.  How about Brown v Board?

Well, it's complete speculation, but it is possible that Brown v. Board or Griswald v. Connecticut could be at risk with another wingnut. The far right hates Warren.

[angus]

I'm not kidding.  Look, Bandit says we're not law experts.  fair enough.  surely I'm not.  But I can imagine some future state lege wants to separate retards out of the general population.  fair enough.  Yes, it seems immoral and a bit bigoted.  but say it happens, now, some clever moralist attorney calls on Brown v Board, and convinces the 9th circuit court of appeals that that retards deserve to go to the same schools as all of us regula' folks.  hmm.  separate facilities are inherently unequal.  but then the clever libertarian attorney says, what?  that's bs.  Now, I'm not saying it's good for society, or bad for society, to separate some group out like that.  but it may happen.  Then it comes down to kennedy, right?  And Brown is either overturned because Kennedy thinks you can't make states keep retards with the others because it's so damned expensive, or it's upheld because Kennedy realizes that if the argument is used to separate retards, then it may set a bad precedent and may one day be used to separate queers, kikes, coons, and catholics.  and those nasty chinks too.  you know how they're always blowing the bell curve with their good marks.  bastards.

am I all confused here?  possibly.  I don't claim to be a lawyer.  just throwin' it  out there for discussion.

[○∙◄☻¥tπ[╪AV┼cVê└]

I'm not kidding.  Look, Bandit says we're not law experts.  fair enough.  surely I'm not.  But I can imagine some future state lege wants to separate retards out of the general population.  fair enough.  Yes, it seems immoral and a bit bigoted.  but say it happens, now, some clever moralist attorney calls on Brown v Board, and convinces the 9th circuit court of appeals that that retards deserve to go to the same schools as all of us regula' folks.  hmm.  separate facilities are inherently unequal.  but then the clever libertarian attorney says, what?  that's bs.  Now, I'm not saying it's good for society, or bad for society, to separate some group out like that.  but it may happen.  Then it comes down to kennedy, right?  And Brown is either overturned because Kennedy thinks you can't make states keep retards with the others because it's so damned expensive, or it's upheld because Kennedy realizes that if the argument is used to separate retards, then it may set a bad precedent and may one day be used to separate queers, kikes, coons, and catholics.  and those nasty chinks too.  you know how they're always blowing the bell curve with their good marks.  bastards.

am I all confused here?  possibly.  I don't claim to be a lawyer.  just throwin' it  out there for discussion.

While Kennedy is definitely right of center, I think he'd uphold Brown v. Board of Ed. I'm not so sure about the 4 wingnuts.

[A18]

Uh, two points, both of which should be obvious, but apparently aren't to some people.

First, Scalia, Thomas, Alito, and Roberts all support Brown, as each has made very clear.

Second, Brown v. Board of Education dealt only with racial segregation. In cases of sex separation, the Court would apply intermediate scrutiny, and in the case angus brings up, a mere rational basis would be required.

[○∙◄☻¥tπ[╪AV┼cVê└]

Uh, two points, both of which should be obvious, but apparently aren't to some people.

First, Scalia, Thomas, Alito, and Roberts all support Brown, as each has made very clear.

Second, Brown v. Board of Education dealt only with racial segregation. In cases of sex separation, the Court would apply intermediate scrutiny, and in the case angus brings up, a mere rational basis would be required.

Roberts made it very clear during his confirmation that he was in favor of the Oregon assisted suicide law. Enough said.

[A18]

Roberts made it very clear during his confirmation that he was in favor of the Oregon assisted suicide law.

He did no such thing.

[○∙◄☻¥tπ[╪AV┼cVê└]

Roberts made it very clear during his confirmation that he was in favor of the Oregon assisted suicide law.

He did no such thing.

He went on and on about "judicial restraint", and he told Senator Wyden that he supported the law.

So where in the constitution does it say that a state can not have a law allowing physician assisted suicide?

[Jake]

The sentence right after it says states cannot infringe upon abortion rights.

[A18]

He went on and on about "judicial restraint", and he told Senator Wyden that he supported the law.

Where? Not that it matters anyway, since his judicial views and political views may differ substantially.

You must be logged in to read this quote.

Um, it says that a valid federal statute overrides state law. Roberts thought federal law and the Oregon statute were irreconcilable, and therefore Oregon law had to give way, unless the federal statute was unconstitutional (an issue which was not before the court).

[ag]

you're getting way ahead of yourself.  and probably overlooking anthony kennedy's swing position.

Kennedy voted against the majority in all of those cases. O'Connor was the fifth vote in each of them.

The fact that Kennedy voted against the majority in those cases does not mean that he would vote to overturn them if given a chance now. Justices do take precedent seriously, and while they are allowed to depart from it, voting against the original decision does not imply voting to overturn it. Also, being the pivotal voter on the court affects how one votes: instead of joining one of the camps he could design an inermediate opinion that fits his views best.

If Kennedy wrote opinions in those cases back then, there might be a clue of how he'd vote now.  Given his personality, I would think he'd be likelier to try to write middle-of-the-way opinions of limited impact. He is also not averse to changing his views: remember, this is the guy who once went to write a 5:4  majority opinion overturning Roe, and emerged writing a 5:4 majority opinion upholding it.

[Flying Dog]

Dems would dominate in a post- roe world.

[Emsworth]

Dems would dominate in a post- roe world.

Why? People would quickly realize that overturning Roe does not mean making abortion illegal throughout America. They would find out that abortion merely becomes a state issue again. There would, therefore, be no backlash against Republicans.

[○∙◄☻¥tπ[╪AV┼cVê└]

Dems would dominate in a post- roe world.

Why? People would quickly realize that overturning Roe does not mean making abortion illegal throughout America. They would find out that abortion merely becomes a state issue again. There would, therefore, be no backlash against Republicans.

Who says they won't ban it like they tried to do to physician assisted sucide?

[Emsworth]

Who says they won't ban it like they tried to do to physician assisted sucide?

The very idea that a bill to ban abortions would pass Congress is ludicrous. And even the bill does pass, the Supreme Court would overturn it very quickly.

[Flying Dog]

Dems would dominate in a post- roe world.

Why? People would quickly realize that overturning Roe does not mean making abortion illegal throughout America. They would find out that abortion merely becomes a state issue again. There would, therefore, be no backlash against Republicans.

The pro-choicers who dont vote at all will be pissed. They will go out and vote straight dem.

[A18]

Justices do take precedent seriously, and while they are allowed to depart from it, voting against the original decision does not imply voting to overturn it.

No, it almost always does mean voting to overturn it.

I noticed Kennedy didn't care too much about precedent in Lawrence v. Texas.

Casey itself overruled much of Roe, despite precedent.

[Emsworth]

The pro-choicers who dont vote at all will be pissed. They will go out and vote straight dem.

In liberal states, abortion will still be legal, so I don't think that there will be a large showing of new pro-choice voters. And in conservative states, there aren't many pro-choicers anyway.

[dazzleman]

Overturning of Roe vs. Wade would have few practical effects.  In liberal states, abortion would remain legal.  In conservative states that would outlaw abortion, little access exists to it now anyway since there are few abortion clinics in those states.

But it would remove an egregious example of judicial tyranny and activism that has contorted our political scene for 33 years.

[Virginian87]

Grutter v. Bollinger -- upholding the affirmative action admissions policy of the University of Michigan Law School

I completely agree with you on this one.  Know what's funny?  Lee Bollinger is the president of my university now.  I've met him a couple of times at Columbia's gym.  Other than the whole affirmative action thing, he's a pretty cool guy.