Which Precedents are in Jeopardy?

[Marty Lederman]

My latest rough list (http://www.sctnomination.com/blog/archives/2005/07/which_important_1.html).  Edits, additions, etc., welcome.
 
Which Important Precedents are Likely to Be in Jeopardy?
Jurisprudential Effects | 01:23 PM | Marty Lederman | Comments (0) | TrackBack (1) 

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. (Post in progress. Please suggest additional cases.)

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 

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

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

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 

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



----- Original Message ----- 
From: "Marty Lederman" <marty.lederman at comcast.net>
To: "Douglas Laycock" <DLaycock at law.utexas.edu>; <conlawprof at lists.ucla.edu>
Sent: Friday, July 01, 2005 12:31 PM
Subject: Which Precedents are in Jeopardy?


> Over on SCOTUSblog 
> (http://www.scotusblog.com/movabletype/archives/2005/07/which_important.html), 
> I'm collecting 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. Please suggest additional cases that I 
> should add.  (I haven't yet checked the 5-4s from the October Term 2002 --  
> if anyone has a copy of the 2003 Harvard Law Review, that would be helpful.)
> 
> My (tentative) list thus far (not yet including cases from the 
> just-concluded Term, the October 2002 Term, or prior to 1998):
> McCreary County v. ACLU (2005) -- Ten Commandments displays
> 
> Tennessee v. Lane (2004) -- Congress's Section 5 power
> 
> McConnell v. FEC (2003) -- campaign finance
> 
> Grutter v. Bollinger (2003) -- affirmative action
> 
> Mitchell v. Helms -- direct aid to religious schools
> 
> Stenberg v. Carhart (2000) -- "partial-birth abortion" ban
> 
> 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
> 
> Morse v. Republican Party (1996)
> 
> Zadvydas v. Davis
> 
> Brentwood -- state action
> 
> Hunt v. Cromartie -- race-based redistricting
> 
> Rogers v. Tennessee -- "judicial" ex post facto
> 
> 
> 
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