After it overturns Roe vs. Wade, what'll the Supreme Court do for an encore?
Got a Supreme Court precedent you don't like? Is there a liberal decision that's always stuck in your craw? Think the court has flipped too far to the left and needs to be flipped back?
Now's your chance!
That's the message of the draft opinion on abortion that leaked to the press in May: The court, with its newly empowered conservative majority, is ready and willing to entertain challenges to long-standing precedents.
So find yourself a case you hate and get in line.
By now, everyone has heard that a range of personal liberty and privacy cases may be in jeopardy because they rely on the same logic as Roe vs. Wade. The right to use contraception, to marry who you want, to engage in the sort of consensual sex you want in your own home — these rights are all potentially in danger because, like the right to an abortion, they are not specifically enumerated in the U.S. Constitution and may not be deemed to be deeply rooted in the nation's history and traditions.
I'm not saying they're going down. But we can't be sure.
And there's more at stake than just those cases. If the court is in the mood for overturning old decisions, there's a lengthy list of liberal rulings that conservatives have long seethed over.
For instance, Texas Gov. Greg Abbott, a Republican, has a candidate for reconsideration. Just a couple of days after the draft opinion overturning Roe vs. Wade was leaked, Abbott announced jubilantly that "times were different" now and that he was going to challenge Plyler vs. Doe, a 40-year-old precedent saying that states must pay to educate undocumented immigrant children.
In the crosshairs: I asked several legal scholars what other decisions are in the conservatives' crosshairs.
Berkeley Law School Dean Erwin Chemerinsky mentioned the affirmative action cases — Bakke, Grutter and Fisher, among them — that have over four decades established the rights of colleges and universities to take race into account in admissions decisions. Two cases on the docket now offer the justices the opportunity to reverse the court on affirmative action.
Chemerinsky said the conservative justices would also be likely to go after decisions barring prayer in schools and limiting government aid to religious schools. One freedom-of-religion case that is in jeopardy is Employment Division vs. Smith, which was on the surface about the sacramental use of peyote, but ultimately had to do with whether religious beliefs and ceremonies can trump state law. (They can't.) Conservatives hate the decision and several of the current justices have said it should be overturned.
Mark Tushnet, a professor at Harvard Law School, said the court might overrule decisions involving the regulatory power of the federal government, such as 1942's Wickard vs. Filburn, in which the court held that Congress can regulate activities that have a substantial economic effect on interstate commerce. Overturning such precedents could dramatically weaken the government's ability to regulate workplace safety and environmental protection, among other things.
"Everything's up for grabs," said Tushnet. "Conservatives have been developing the arguments about these cases for decades. Overruling them is baked into the conservative legal movement."
Stephen I. Vladeck, a professor at the University of Texas School of Law, said that Justice Clarence Thomas has already hinted he'd like to revisit New York Times vs. Sullivan, the 1964 decision laying out the 1st Amendment's powerful protections for newspapers against libel claims. Vladeck also noted that there's widespread hostility among conservatives to Miranda vs. Arizona, the decision that required what are now known as Miranda warnings for criminal suspects, advising them of their rights.
"Once there's a majority willing to overrule precedents like Roe, it's hard to know where that stops," Vladeck says.
Grounded decisions: Akhil Amar, a professor of law and political science at Yale, takes a somewhat less dire view of the future, arguing that the court won't just sweep through, striking down rights and slapping down precedents cavalierly if the underlying decisions are clearly grounded in the Constitution.
For instance, he doesn't believe the court is likely to go so far as to allow something as manifestly unconstitutional as mandatory school prayer — but says it might overrule Wallace vs. Jaffree, the 1985 case that banned silent moments in school for "meditation or silent prayer."
"I think the decisions that are most vulnerable are those for which there is a combination of strong political opposition — and internal weakness in the legal argument," he says.
For my part, I don't oppose overruling past mistakes. I agree with Justice Samuel A. Alito Jr. in his draft decision that precedents aren't sacrosanct and shouldn't be allowed to remain in place if they're legally or morally wrong.
Thank goodness the court overturned Plessy vs. Ferguson, the 1896 decision that authorized racial segregation, in 1954's Brown vs. Board of Education. Thank goodness the court repudiated and overturned Bowers vs. Hardwick, the 1986 decision upholding Georgia's anti-sodomy laws, in 2003's Lawrence vs. Texas.
On the other hand, precedents shouldn't be overturned lightly, or for ideological reasons. The Supreme Court shouldn't become a political body (like the other two branches), where outcomes matter more than legal principles, where each justice votes his own personal opinions — and where every time a liberal majority is seated the court swings left and every time a conservative majority comes in it swings right.
Yes, it already appears we're well on the way to that. But we should reverse course.
Besides, the rulings mentioned above don't deserve to be overturned. They've by and large expanded rights and strengthened democracy and made the country more fair. We don't need the court to come tromping and marauding through, slapping down cases and laws that have served the country well.
So let's pray (but not at school) that we're not in for a massive conservative rewriting of the court's jurisprudence just because the votes are there to do so.
Unfortunately, the early signs are not promising.
— Nicholas Goldberg is an associate editor and Op-Ed columnist for the Los Angeles Times.