A washingtonpost.com article from: s-gerber@onu.edu

Wed Mar 8 18:06:41 PST 2006

I should know the answer but I'm not certain I remember correctly: what
sanctions are faced by legislators who enact a statute that clearly
violates the Constitution as written, with no attempt to finesse a
distinction? None? Protected by immunity? Is the rationale that
sometimes the only opportunity for the Supreme Court to reconsider a
decision is for someone, somewhere to disregard it? But is such a
rationale undercut by the Court's ability to reconsider one of its own
decisions sua sponte? Does permitting legislatures to act in defiance of
Supreme Court decisions, without consequences (other than in the voting
booth) lessen the solemnity of Constitutional amendment (or convention)
as the path to changing a Supreme Court decision? Somehow I'm thinking
there is a lesson in Dred Scott, and the 13th Amendment, but I also
think that analogies break down because states that refused to permit
slavery within their jurisdictions weren't defying the Dred Scott
decision.

Education welcome.

Thanks.

Jim Maule

>>> William Araiza <Bill.Araiza at lls.edu> 3/8/2006 8:48:51 PM >>>
I have a slightly different question about the South Dakota abortion 
law, in particular, about the litigation that will surround it.  How 
would the state go about defending the law in the lower courts?  Assume

(which I take to be the case anyway) that the law clearly conflicts
with 
Casey.  The Supreme Court can always reconsider its decisions but
before 
the case gets there the lower courts have to weigh in.  What do the 
state's lower-court briefs say?  How do they get to the conclusion, 
where they request dismissal of the case, when binding law is, we can 
assume, so clearly against them?  Do they rehearse the arguments they 
would make to the Supreme Court, as to why Casey should be overruled? 

Or do they concede that the governing law is against them, but ask for

relief anyway?  I've always wondered about this.  Any insights would be

appreciated.

Scott Gerber wrote:

>Hi Yvette:
>
>I feel the same way about South Dakota's new abortion law:  yes, it is

>arrogant for South Dakota to do what it did and I hope and expect a 
>court will declare it unconstitutional with as sharply-worded a slap
at 
>South Dakota as Chief Justice Roberts and his unanimous court
delivered 
>to the law schools.
>
>Believe it or not, I'm not an ideologue.  And believe it or not, I
also 
>support gay rights (and have done so in print).  I simply have no
truck 
>for arrogance and elitism.  I also care what our brave men and women
in 
>harm's way.  They deserve more respect than the Solomon litigation
paid 
>them.
>
>Take care,
>Scott
>
>
>Barksdale, Yvette wrote:
>
>
>  
>
>>Hi Scott
>>
>>Do you feel the same way about South Dakota's new abortion law? Are
they
>>also arrogant under your analysis? They enacted a law, which is
clearly
>>unconstitutional under current law, specifically in order to test
the
>>waters, and try to get the law changed. 
>>
>>Although they have not themselves, obviously filed suit, they are
>>clearly contemplating that other people will and this matter will
end
>>up, they hope, before the Supreme Court. 
>>
>>However, at this point, the prevailing wisdom is that there is no
chance
>>that their statute could survive with the current court because
there
>>are not enough anti-Roe horses on board. There has been some
discussion
>>that perhaps Stevens, being elderly, will not outlast Bush, and so
>>therefore there might be another Anti-Roe pick (of course the
likelihood
>>of this seems slim - since a) Bush was never really strongly favored
>>anti-abortion justice to begin with  - see Miers, and any such pick
>>would be so close to 2008 Presidential elections - it is likely
>>Republicans would prefer to leave the matter as an issue in the 2008
>>elections, rather than to give the anti-abortion people what they
want
>>ahead of time.) 
>>
>>Indeed, the South Dakota law, seems to make the a Bush anti-abortion
>>pick even less likely, since the South Dakota law and accompanying
>>lawsuit simply focuses public attention even more on the practical
>>consequences of such an anti-abortion Justice. 
>>
>>So, one could argue this is a similar Don Quixote move, this one
costing
>>other people (South Dakota taxpayers)  a ton of money in litigation
>>expenses. 
>>
>>Yet, nevertheless South Dakota is proceeding bravely, on what
clearly
>>seem to be moral grounds. 
>>
>>Might it be that law professors who joined this lawsuit also were
>>similarly acting on moral grounds, hoping, perhaps against hope, 
that
>>the Court would find some way to hold in their favor. 
>>
>>And I am not so sure that it was objectively clear that the lawsuit
>>would fail. 
>>
>>For example, couldn't the statutory interpretation have carried the
day
>>had the Court been inclined to use it usual textualist
interpretative
>>method  -After all the statute text requires "equal access" with
other
>>employers . Here, the law schools also barred private employers with
>>discriminatory employment practices. A plain language analysis would
>>certainly suggest barring military recruiters on the same ground
would
>>be according "equal access."   Instead, the Court concluded, with
almost
>>no supporting analysis, that despite the clear language of the
statute,
>>Congress intended "equal " military access to mean "mandatory
preferred"
>>military access, irregardless of the school's general recruitment
>>requirements. 
>>
>>Ok fine. Presumably, the Court was of the view that this matter  was
one
>>for the political process to resolve and not for the Courts. But was
>>that result clearly  predictable ahead of time?  
>>
>>So again, what makes the law profs suit any more arrogant than South
>>Dakota's incitement of pipe dream litigation?  
>>
>>
>>yb 
>>
>>***/////////////////////////////////////////***
>>
>>Professor Yvette M. Barksdale
>>The John Marshall Law School
>>315 S. Plymouth Ct. 
>>Chicago, IL 60604
>>(312) 427-2737 (phone)
>>(312) 427-9974 (fax)
>>
>>***/////////////////////////////////////////***
>>
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu 
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
>>Sent: Wednesday, March 08, 2006 2:29 PM
>>To: Marty Lederman
>>Cc: conlawprof at lists.ucla.edu 
>>Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu 
>>
>>With all due respect to Marty Lederman, whose posts I usually find 
>>doctrinal gems, I find it difficult to believe that the law
professors 
>>who sued the federal gov't "hoped" they would lose.
>>
>>I think Nelson Lund has it almost correct.  I think it's more
arrogance 
>>than cynicism that explains why the lawsuit was filed.
>>
>>Scott
>>
>>
>>
>>
>>    
>>
>
>--------------------------------------
>
>Scott Gerber
>Law College
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty/gerber/ 
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-- 
Bill Araiza
Associate Dean for Faculty and Professor of Law
Loyola Law School, Los Angeles
Loyola Marymount University
919 Albany St.
Los Angeles CA 90015
213-736-8167 (voice)
213-380-3769 (fax)