South Dakota: Speaking Truth to Power
nebraskalawprof at yahoo.com
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.
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
> Education welcome.
> 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
> Casey. The Supreme Court can always reconsider its decisions but
> 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
> Scott Gerber wrote:
>>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
>>South Dakota as Chief Justice Roberts and his unanimous court
>>to the law schools.
>>Believe it or not, I'm not an ideologue. And believe it or not, I
>>support gay rights (and have done so in print). I simply have no
>>for arrogance and elitism. I also care what our brave men and women
>>harm's way. They deserve more respect than the Solomon litigation
>>Barksdale, Yvette wrote:
>>>Do you feel the same way about South Dakota's new abortion law? Are
>>>also arrogant under your analysis? They enacted a law, which is
>>>unconstitutional under current law, specifically in order to test
>>>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
>>>up, they hope, before the Supreme Court.
>>>However, at this point, the prevailing wisdom is that there is no
>>>that their statute could survive with the current court because
>>>are not enough anti-Roe horses on board. There has been some
>>>that perhaps Stevens, being elderly, will not outlast Bush, and so
>>>therefore there might be another Anti-Roe pick (of course the
>>>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
>>>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
>>>other people (South Dakota taxpayers) a ton of money in litigation
>>>Yet, nevertheless South Dakota is proceeding bravely, on what
>>>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,
>>>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
>>>For example, couldn't the statutory interpretation have carried the
>>>had the Court been inclined to use it usual textualist
>>>method -After all the statute text requires "equal access" with
>>>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
>>>be according "equal access." Instead, the Court concluded, with
>>>no supporting analysis, that despite the clear language of the
>>>Congress intended "equal " military access to mean "mandatory
>>>military access, irregardless of the school's general recruitment
>>>Ok fine. Presumably, the Court was of the view that this matter was
>>>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?
>>>Professor Yvette M. Barksdale
>>>The John Marshall Law School
>>>315 S. Plymouth Ct.
>>>Chicago, IL 60604
>>>(312) 427-2737 (phone)
>>>(312) 427-9974 (fax)
>>>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
>>>who sued the federal gov't "hoped" they would lose.
>>>I think Nelson Lund has it almost correct. I think it's more
>>>than cynicism that explains why the lawsuit was filed.
>>Ohio Northern University
>>Ada, OH 45810
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> Bill Araiza
> Associate Dean for Faculty and Professor of Law
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Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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