Request for Assistance -- O'Connor and Alito

Thu Apr 19 14:27:11 PDT 2007

I don't disagree -- but it's very hard to say that it's a 5-4, let alone that Justice Alito will differ much from Justice O'Connor on this one.  After all, she voted with the majority in both Hazelwood and Fraser.

 -------------- Original message ----------------------
From: HOWARD H SCHWEBER <hhschweber at facstaff.wisc.edu>
> I wonder whether Morse v. Frederick poses a threat to the continued vitality of 
> Tinker v. Des Moines?  Not so much in terms of an overruling, but a narrowing of 
> the protections afforded by a much greater deference to teachers' and 
> administrators' assertion that disruption might have occurred but for the 
> intervention to prevent the expression.
> 
> hs
> 
> 
> 
> 
> ----- Original Message -----
> From: Steven Jamar <stevenjamar at gmail.com>
> Date: Thursday, April 19, 2007 2:25 pm
> Subject: Request for Assistance -- O'Connor and Alito
> To: ConLaw Prof <CONLAWPROF at lists.ucla.edu>
> 
> 
> >  
> >  well, what would the effect be of the recent standing/environment  
> >  case?  that might affect both Lane and Alaska v. EPA . . ..  I  
> >  haven't really worked it through though.
> >  
> >  Steve
> >  >
> >  >
> >  > On Apr 19, 2007, at 4:08 PM, marty.lederman at comcast.net wrote:
> >  >
> >  > Two years ago, when Justice O'Connor announced her retirement, I  
> >  > compiled a list of precedents that I thought were most vulnerable  
> > 
> >  > to overruling.  Several folks on this listserv made very helpful  
> >  > suggestions of deletions and additions.  I've now republished that  
> > 
> >  > list, since Stenberg v. Carhart was the first major overruling of  
> > 
> >  > an SOC-era precedent.  Several news outlets and others have asked  
> > 
> >  > me if they can use the list, and before I say yes, I was wondering  
> > 
> >  > if anyone here thinks there are any obvious mistakes or omissions  
> > 
> >  > on it -- particularly now that we know that Roberts and Alito are  
> > 
> >  > on the Court.  And of these precedents, which are the most  
> >  > vulnerable?  Thanks very much in advance for any suggestions.
> >  >
> >  > 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)
> >  >>
> >  
> >  -- 
> >  Prof. Steven D. Jamar                               vox:  202-806-8017
> >  Howard University School of Law                     fax:  202-806-8567
> >  2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
> >  Washington, DC  20008                                                 
> >                 http://iipsj.com/SDJ/
> >  
> >  "Whenever you find yourself on the side of the majority, it is time  
> > 
> >  to pause and reflect."
> >  
> >  Mark Twain
> >  
> >  
> >  
> > _______________________________________________
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