Stenberg Effectively Overruled

kbergin at stcl.edu kbergin at stcl.edu
Wed Apr 18 09:02:28 PDT 2007


Isabel,

I see the irony you mention as one that applies generally to the 
gov'ts defense of many federal initiatives in the recent commerce 
clause cases given its simultaneous philosophical defense of state 
rights.  Gonzalez v. Raich and v. Oregon come to mind.  Seems to me 
like the arguments raised in these cases reflect an inconsistency b/w 
legal strategy/arguments and government philosophy.  Yes? No?

Kathleen A. Bergin
Associate Professor of Law
South Texas College of Law
1303 San Jacinto Street
Houston, TX 77018
p: 713-646-1829
f: 713-646-1766

----- Original Message -----
From: medina <medina at loyno.edu>
Date: Wednesday, April 18, 2007 10:42 am
Subject: Re: Stenberg Effectively Overruled
To: Marty Lederman <marty.lederman at comcast.net>, ConLaw Prof 
<CONLAWPROF at lists.ucla.edu>, lawcourts-l at usc.edu

> I don't disagree with you about the outcome of a commerce
> challenge, but my advanced conlaw course had discussed the
> irony in having a scheme of federal abortion regulation that
> would now make it impossible for providers in states with
> more liberal schemes to provide certain types of abortion
> services.
> 
> Irony, of course, in noting that the one woman left on the
> Court wrote the dissent.
> 
> Isabel Medina, Loyola New Orleans 
> 
> 
> ---- Original Message Follows -----
> From: "Marty Lederman" <marty.lederman at comcast.net>
> To: "Marty Lederman" <marty.lederman at comcast.net>, "ConLaw
> Prof" <CONLAWPROF at lists.ucla.edu>, <lawcourts-l at usc.edu>
> Subject: Re: Stenberg Effectively Overruled
> Date: Wed, 18 Apr 2007 11:31:11 -0500
> 
> > By the way: Justice Thomas in his concurrence suggests
> > that he might have voted to invalidate the statute if a
> > Commerce Clause challenge had been raised. In other words,
> > if the Respondents had raised a Commerce Clause challenge,
> > as well -- something they were wise not to do, not of
> > least of which because statutes governing medical
> > facilities plainly are valid Commerce legislation -- the
> > Court might well have invalidated the statute, even though
> > there would have been no majority of the Court for any
> > particular ground of invalidation (a form of "Tidewater
> > Transfer" disposition). That's not really very important,
> > however, because the practical significance of today's
> > case is not so much the fate of the federal statute itself
> > as the evisceration of the Casey/Carhart undue burden test
> > for facial challenges.
> >   ----- Original Message ----- 
> >   From: Marty Lederman 
> >   To: ConLaw Prof 
> >   Sent: Wednesday, April 18, 2007 10:49 AM
> >   Subject: Stenberg Effectively Overruled
> > 
> > 
> >  
> >
> http://balkin.blogspot.com/2007/04/profound-effects-of-justice-
> oconnors.html> 
> > 
> > 
> >   The Profound Effects of Justice O'Connor's Retirement 
> > 
> > 
> >   Marty Lederman 
> > 
> > 
> >   Back in July 2005, I posted to SCOTUSblog a list of
> > precedents that were the most vulnerable in the wake of
> > Justice O'Connor's retirement. The list is republished
> > below. At the time, I wrote that the most important and
> > most vulnerable of those precedents were in the areas of
> > the Establishment Clause (especially the direct funding
> > cases such as Mitchell v. Helms), affirmative action (and
> > just watch what happens to Grutter later this Term), and
> > abortion, where Stenberg v. Carhart was hanging by a
> > thread. Today, the thread snapped, as a five-Justice
> > majority upheld the federal "partial-birth abortion"
> > prohibition.
> > 
> >   In its decision today, the Court effectively overruled
> > Stenberg's "undue burden" test for facial challenges to
> > abortion-restriction statues (see pages 36-37 of the
> > opinion). 
> > 
> > 
> >   My post from July 2005:
> > 
> >   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. 
> > 
> >   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
> > 
> >   Groh v. Ramirez (2004) -- sufficiency of
> > non-particularized search warrant
> > 
> >   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
> > 
> >   Alabama v. Shelton (2002) -- right to counsel
> > 
> >   Rush Prudential HMO v. Moran (2002) -- upholding state
> > laws giving patients the right to second doctor's opinion
> > over HMOs' objections
> > 
> >   Kelly v. South Carolina (2002) -- capital defendant's
> > due process right to inform jury of his parole
> > ineligibility
> > 
> >   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
> > 
> >   Richardson v. McKnight (1997) -- private prison guards
> > not entitled to qualified immunity in section 1983 suits
> > 
> >   Camps Newfound/Owatonna v. Town of Harrison (1997)
> > (dormant Commerce Clause)
> > 
> >   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
> > 
> >   Schlup v. Delo (1995) (habeas, actual innocence) 
> > 
> >   Posted 10:34 AM by Marty Lederman [link] 
> > 
> > 
> > 
> > 
> > 
> > ----------------------------------------------------------
> > --------------------
> > 
> > 
> >   _______________________________________________
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> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> 
> Please note that messages sent to this large list cannot be viewed 
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