Stenberg Effectively Overruled

Samuel Bagenstos srbagenstos at wulaw.wustl.edu
Wed Apr 18 13:44:20 PDT 2007


My point was about the underlying merits of the argument.  As to
litigation strategy, though, it does seem to me that the most likely
outcome, had the Commerce Clause issue been raised, would have been for
Justice Thomas to write something to the effect of:  "Although this
Court's recent precedents support the proposition that the Act is a
valid exercise of Congress's commerce power, I am persuaded that the Act
goes beyond the original understanding of that power.  But because a
majority of my colleagues are not prepared to return to the original
understanding, and I agree with the Court's conclusion that the Act does
not violate the Due Process Clause, I join the Court's opinion."  Which
isn't to say it shouldn't have been raised, just that I doubt it would
have changed anything.

Samuel R. Bagenstos
Professor of Law
Washington University Law School
One Brookings Drive, Box 1120
St. Louis, MO  63130
(314) 935-9097 (voice)
(314) 935-5356 (fax)
 
Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198
Disability law blog:  http://disabilitylaw.blogspot.com/

-----Original Message-----
From: Kermit Roosevelt [mailto:krooseve at law.upenn.edu] 
Sent: Wednesday, April 18, 2007 3:29 PM
To: Samuel Bagenstos; marty.lederman at comcast.net; Conkle, Daniel O.;
ConLaw Prof; lawcourts-l at usc.edu
Subject: RE: Stenberg Effectively Overruled

But isn't Dan's point that the Commerce Clause argument might have
picked up Thomas but no one else, leading to victory in this case
without any danger to FACE or OSHA?  

-- 
Kermit Roosevelt
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia PA 19104
215.746.8775


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Wednesday, April 18, 2007 3:13 PM
To: marty.lederman at comcast.net; Conkle, Daniel O.; ConLaw Prof;
lawcourts-l at usc.edu
Subject: RE: Stenberg Effectively Overruled

Totally right.  And don't we really have to go back pre-1937 (or at
least pre-1941) to say that PBABA exceeds Congress's commerce authority?
How do you distinguish the OSH Act?

Samuel R. Bagenstos
Professor of Law
Washington University Law School
One Brookings Drive, Box 1120
St. Louis, MO  63130
(314) 935-9097 (voice)
(314) 935-5356 (fax)
 
Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198
Disability law blog:  http://disabilitylaw.blogspot.com/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
marty.lederman at comcast.net
Sent: Wednesday, April 18, 2007 1:30 PM
To: Conkle, Daniel O.; ConLaw Prof; lawcourts-l at usc.edu
Subject: RE: Stenberg Effectively Overruled

Actually, wise from the perspective of their long-term interests,
because the future undoubtedly (or one hopes, anyway) will see federal
statutes such as the FACE Act, which *protect* womens' rights at medical
facilities.



 -------------- Original message ----------------------
From: "Conkle, Daniel O." <conkle at indiana.edu>
> It's not entirely clear to me why it was wise for the respondents not
to
> make a Commerce Clause challenge if, as Marty suggests, that might
have
> led to an invalidation of the law (on mixed grounds), turning
Kennedy's
> opinion into a dissent.  I assume Marty means "wise" in the sense of
> "constitutionally sound" (as Marty reads the Constitution), not "wise"
> in the sense of good litigation strategy.
>  
> Dan Conkle 
> ******************************************* 
> Daniel O. Conkle 
> Robert H. McKinney Professor of Law 
> Indiana University School of Law 
> Bloomington, Indiana  47405 
> (812) 855-4331 
> fax (812) 855-0555 
> e-mail conkle at indiana.edu 
> ******************************************* 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Wednesday, April 18, 2007 12:31 PM
> To: Marty Lederman; ConLaw Prof; lawcourts-l at usc.edu
> Subject: Re: Stenberg Effectively Overruled
> 
> 
> 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 <mailto:marty.lederman at comcast.net>  
> 	To: ConLaw Prof <mailto:CONLAWPROF at lists.ucla.edu>  
> 	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
> <http://www.scotusblog.com/movabletype/archives/05-380_All.pdf> .
> 	
> 	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] 
> 	
>
<http://balkin.blogspot.com/2007/04/profound-effects-of-justice-oconnors
> .html> 
> 
> 	 
> 
> 	
> ________________________________
> 
> 
> 	
> 
> 	_______________________________________________
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