South Dakota: Speaking Truth to Power

Wed Mar 8 19:38:31 PST 2006

Sometimes, in the face of a Holocaust, it is important for someone to stand up and shout: "We are against this slaughter of innocents!"

  That is how I view the South Dakota legislation. DOA in the courts, but a truth worth saying. I would be proud to be a citizen of South Dakota.

  Rick

Marty Lederman <marty.lederman at comcast.net> wrote:
          Recent discussion of this by Jessica Silbey:  http://lawculture.blogs.com/lawculture/2006/03/the_dare_doctri.html#comments

  As you'll see in the comments there, although I think the South Dakota law is terrible, and unconstitutional, I don't see why a legislature should be "sanctioned" for disagreeing with the Supreme Court about the meaning of the Constitution.  Famous examples at the federal level -- Roosevelt and the New Deal Congress continuing to pass laws in the teeth of SCOTUS decisions, until the Court cried "uncle"; Congress enacting the flag-burning act after Johnson; Congress enacting section 3501 after Miranda.  As Eichman and Dickerson (and, I suppose, City of Boerne) demonstrate, it's not often a very wise or tactical idea for the legislature to thumb its nose at the Court; but I don't see how it's illegitimate, or sanctionable, either.  Remember, for all the (understandable) judicial-supremacy bluster in Cooper v. Aaron, the Little Rock School District was not sanctioned for ignoring Brown (the way it would have been had it ignored a judgment) -- it was "merely" dressed down.

  ----- Original Message -----   From: "James Maule" <maule at law.villanova.edu>
  To: <conlawprof at lists.ucla.edu>
  Sent: Wednesday, March 08, 2006 9:06 PM
  Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu

>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)
> 
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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner

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