What Will Change?
I’m preparing a handy-dandy table of what one could expect from the Supreme Court if John Roberts is confirmed, and turns out to be the solid conservative everyone (OK, maybe not quite everyone) thinks he is, and if all the recent hot-button issues end up before the court again (the last is a big “if,” but work with me). It’s a work in progress, which I intend to update as warranted, hopefully in large part from users’ comments - particularly those who know something about Judge Roberts that might shed more light on my guesses (which, in their current form, simply assume that he does the standard “conservative” thing every time). Think of it as an almost-Wiki in that regard: you can submit edits, it’s just that the may or may not end up in the document.
| Abortion (first trimester) | Still a “constitutional” right. | Remember those lies you’ve endured from feminists over the past decade about how we were “one vote away” from overturning Roe v. Wade? Well, all those lies finally came true, but no matter. Close only counts with horseshoes and hand grenades, not Supreme Court decisions, so we’re right back where we were in Planned Parenthood of Southeastern Pennsylvania v. Casey. | |
| Abortion (hiring doctors to poke open half-born babies’ skulls) | No longer a “constitutional” right. | In Stenberg v. Carhart, a.k.a. Roe on steroids, the Supremes ruled 5-4 in favor of partial-birth abortion. Now, it’s probably 5-4 the other way. | |
| Sodomy | Still a “consitutional” right. | Lawrence v. Texas was a 6-3 decision, so if the issue came before the court again it would be 5-4 now. And the chances of it coming before the court are essentially nil anyway. Legislatures have better things to do than re-enact uncommonly silly laws that were well on the way out before the Supremes unwisely stepped in in the first place. | |
| Establishment Clause | Historical display of Ten Commandments OK | When the Supremes split this baby, Justice Breyer was the wildcard, with Justice O’Connor voting against both displays. A conservative would have no problem with these displays, turning the the four vote plurality in Van Orden v. Perry and the four vote minority in McCreary County v. ACLU of Kentucky into clear 5-4 majorities in both cases. | |
| Freedom of Expression (flag burning) | Probably still a constitutional right. | Texas v. Johnson was a 5-4 decision, with Justice O’Connor among the dissenters, so incoming Justice Roberts won’t upset that balance except possibly to create a 6-3 majority. However, there have been four other personnel changes since 1989, so Lord only knows how the court would come down if the issue were revisted today, even if we assume that Justices Kennedy and Scalia would still support the ruling, and that Justices Rehnquist and Stevens would still oppose it. | |
| Freedom of Expression (political speech) | McConnell v. FEC, the infamous 2003 case upholding the McCain-Feingold “reforms,” split many different ways on many different issues, but was 5-4 on the one that counted, with Justice O’Connor as the turncoat. Now the First Amendment enjoys a 5-4 majority instead of a 4-5 deficit. Isn’t that special? | ||
| Right to Arm Bears | None. | Four Justices are strict constructionists who can’t find anything in the Constitution about bears, and a fifth doesn’t care about the issue because |
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| Right to Bear Arms | LFI no. | The Supremes haven’t touched the issue since the 1939 case of U.S. v. Miller, and were pretty cryptic about it even then. Justices Scalia and Thomas have made their support clear, and the entire Court implied in dicta that it endorsed the commonsense interpretation (i.e., that guns are “arms,” people are “people” and allowing a government to possess guns of its own is not the same thing as “keeping” or “bearing” them yourself) in U.S. v. Verdugo-Urquidez, a Fourth Amendment case. Justices Rehnquist and Roberts would likely follow suit, but that makes four, not five. Regarding the lack of an international consensus in favor of an armed citizenry see above. | |
| Eminent Domain | Anything the government wants to do is a “public use.” | Unfortunately, Justice O’Connor was among the dissenters in Kelo v. New London, so the best we can hope for in Roberts’s case is to tread water until Justice Stevens or Ginsburg retires. | |
| Death Penalty | Unchanged. | Roper v. Simmons, the case barring executions of minors, was a 5-4 decision, with O’Connor among the dissenters, so replacing her with a solid conservative will not affect that ruling. She was part of the majority in Atkins v. Virginia, which barred states from executing the mentally retarded. That case was 6-3, however, so the appointment of one solid conservative in her place will not be enough to overrule it. | |
| States’ Rights (General) | What states’ rights? | The Tenth Amendment will remaing meaningless, or at least almost meaningless, until the infamous 1942 case of Wickard v. Filburn is scaled back or, preferably, overruled outright. That’s still a long shot, and probably an impossibility without at least one more personnel change - and I don’t mean replacing Justice Rehnquist. | |
| States’ Rights (Weed) | Dude, I’m too baked to even know what a state is, right? | Same as above, only worse in light of Justice Scalia’s hair-splitting in Gonzales v. Raich. | |
| Sovereign Immunity | No change | Who the *&^% really cares about this issue anyway?! | |
| Privileges and Immunities | Tell me and we’ll both know. | This one’s probably still a long shot, but another conservative on the court is a move in the right direction. | |
| Due Process (tort damages) | No change. | It is rare for courts to impose tort reform as a constitutional measure, but it does happen on occasion. One such occasion was the seminal case of BMW v. Gore, a 5-4 case that reduced the obscenely high punitive damages that a jury had imposed on BMW for secretly repainting cars. While this decision may be more popular among tort reform-minded conservatives than among corporate-bashing liberals, the makeup of the court was exactly reversed, with Justice O’Connor siding with the pro-business liberals. However, one of the dissenters in Gore, Chief Justice Rehnquist, changed his vote in the more recent case of State Farm v. Campbell, so if Roberts votes with the other conservatives it will still be 5-4 in favor of some constitutional limits on non-compensatory tort damages. Nevertheless, most tort reform will have to come from the legislature. | |
| Equal Protection (benefits for illegals) | No change - but that’s probably OK. | You may recall that when Prop 187 passed handily in 1994, it was immediately challenged in court and struck down by the Ninth Circuit, which largely followed the U.S. Supreme Court ruling of Plyler v. Doe, in which Justice O’Connor dissented. Unfortunately, the legal challenge moved at a snail’s pace, so by the time the Court of Appeal had issued a final, appealable ruling, a new anti-187 administration let it drop. Had they appealed then, they probably would have prevailed, the only wildcard being Justice Kennedy. Since Justice Roberts is replacing a Doe dissenter, the generally favorable odds of Doe’s reversal are unchanged. | |
| Equal Protection (reverse discrimination) | Probably unconstitutional. | The Supremes split the baby in Gratz v. Bollinger and Grutter v. Bollinger two years ago, ruling that obvious, undeniable quotas are unconstitutional (Gratz) but vaguely subtle ones will not be until 2028 (Grutter). Grutter was 5-4, with Justices Breyer and O’Connor as the baby-splitters. If the issues present in Gratz and Grutter come up before the court again, Grutter will likely be overturned, and Gratz will likely be re-affirmed by the same margin as before. Also note that Justice O’Connor was part of the 5-4 majority in Hunt v. Cromartie, a 2001 case that upheld the right of legislatures to gerrymander districts according to race. That case would likely be overruled as well. | |
| Mail-Order Wine | Still a constitutional right, unless it isn’t. | Granholm v. Heald was a 5-4 decision, with Justice O’Connor among the four dissenters. There were no left/right patterns among the Justices on this case, so attempting to predict incoming Justice Roberts’s position on the 21st Amendment is a fool’s errand. It doesn’t matter anyway; if he votes like Justice O’Connor, it’s still a 5-4 ruling; if he doesn’t, it’s 6-3. But if your state prohibits shipping of wine from in-state distributors as well as out of state, this case won’t help you anyway. |
UPDATE: Lots of good ideas in the comments. Keep ‘em coming. I’m constantly updating the grid accordingly.
July 20th, 2005 at 5:20 am
Nice job laying out the issues.
Your ‘predictions’ don’t seem to take into account any qualms Roberts has about overturning precedent - unless he’s willing to do so (as I think Thomas is), I’m afraid all we’ll end up with is a lot more of “I’d like to overturn, but the matter is settled law…”.
July 20th, 2005 at 5:51 am
[...] has a handy little chart on exactly what could change with Roberts on the court. | Link | Category: Politics || [...]
July 20th, 2005 at 6:00 am
Morning Glamour Shots…
Lessee, what’s up this morning? Denizen AFSis had a tough Monday. Go say nice things. Poor John Roberts. As Confederate Yankee points out - it didn’t take the Kossacks long… Right Thoughts caught it too, and linked directly. I prefer…
July 20th, 2005 at 7:51 am
SCOTUS WATCH: HYPERVENTILATION AND SIGHS OF RELIEF
On the left, the NYTimes editorial board warns that if it doesn’t get a Sandra Day O’Connor clone, we will all end up breathing dirty air, working in salt mines, and handing over our children to do slave labor! Mark…
July 20th, 2005 at 8:58 am
The Roberts Rundown
Xrlq is making a chart of how Roberts’ confirmation will change/not change the status quo….
July 20th, 2005 at 12:31 pm
Catching my eye: morning A through Z
Here’s what’s caught my eye this morning: Practically everybody has a run-down on the Roberts nomination for the Supreme Court. So I won’t bother. Afghan Lord has received an answer from the BBC about the death threats he’s been receiving…
July 20th, 2005 at 12:54 pm
How about executing 16-18 year olds? If I recall correctly probably still 5-4 against.
[Yup, see update. - X]
How about limiting punitive damages?
[Will do.]
How about sentencing guidelines?
[Dunno, got any specific cases in mind? If not I'll do a little digging and see what I can find.]
July 20th, 2005 at 1:00 pm
Don’t count Kennedy out on the 2nd Amendment — it’s an “expanded” rights case and Kennedy seems to be OK with increasing people’s rights.
On McConnell, I have no idea what happens: remember the breakdown on that one needed a scorekeeper:
July 20th, 2005 at 1:19 pm
You forgot the affect of this appointment on the 19th amendment! Naturally women have lost half the representation they use to have after all, the Supreme Court has been good about educating us to remember that only their votes matter.
July 20th, 2005 at 3:03 pm
On limiting punitive damages, a more recent case is State Farm vrs Campbell which was 6-3 for limits (Rehnquist switched his position from BMW vrs Gore, Scalia, Thomas and Ginsberg continued to dissent). So there is probably still a majority for limits but it is possible Roberts will be against limits and Rehnquist will switch again.
[D'oh! Duly updated, thanks.]
As for sentencing guidelines as I recall in the federal case 4 judges wanted to throw them out completely (as in the state cases), 4 (including O’Connor) thought they were fine as is and Breyer split the baby and said they were ok if changed from mandatory to voluntary. So another anti vote could throw them out entirely but of course Roberts may agree with O’Connor in which case nothing changes.
July 20th, 2005 at 11:11 pm
[...] XRLQ asks what will change if Roberts is confirmed to the Supreme Court. [...]
July 20th, 2005 at 11:21 pm
[...] XRLQ asks what will change if Roberts is confirmed to the Supreme Court. [...]
July 21st, 2005 at 3:54 am
Joel:
There is zero, zip, nill, nada effect on the nineteenth ammendment. WOmen don’t have an inherant ‘right’ to sit on the Suprerme court. Nor do men, minorities or anyone else.
The right of women to vote is not about to be scaled back. The right or duty of congress to enforce this by law and legislation is not about to be rolled back. SO please DO tell me how this effects the nineteenth ammendment in any way, shape, or form? A Supreme court justice is _not_ an elected position.
July 21st, 2005 at 6:35 am
SCOTUS Decisions that could change with the addition of Roberts
SCOTUS Decisions that could change with the addition of Roberts
July 21st, 2005 at 6:49 pm
[...] Well, in the various reading I’ve done on 2A references (which I admit isn’t up to the level of someone who’s studied the subject extensively, or even a 2nd-year law student, I suppose), I hadn’t heard of U.S. v. Verdugo-Urquidez, a 4th Amendment case, which contains the following, in an opinion delivered by Rehnquist:That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the people of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (”Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble”) (emphasis added); Art. I, 2, cl. 1 (”The House of Representatives shall be composed of Members chosen every second Year by the people of the several States”) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words [494 U.S. 259, 266] “person” and “accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.That’s via Xrlq’s running post on Justice Roberts, which is interesting in and of itself. Humorous too. [...]
July 24th, 2005 at 12:37 pm
[...] Using an easy-to-understand chart, Ixlq takes look at what will change and won’t change if John Roberts is confirmed to the Supreme Court. Not much, it looks like. [...]
July 25th, 2005 at 6:02 am
Ryan…
Take a deep breath and reread my comment. I apologize if I was doing a poor job of it, but I was being sarcastic. The point being for any number of contentous cultural and moral issues the only votes that matter are the Supremes, and that is what is truly unacceptable.
As longer reader of this site can attest, I myself am generally quite conservative.