Justice O'Connor has passed away. May she rest in peace. My first thought upon hearing of this sad event was about the CASEY decision in 1992, and about how this looks in retrospect. Casey came just as a twelve-year period of continuous Republican occupation of the White House was ending. Clinton won the election that year -- before then, Reagan and the elder Bush had been President, and it was widely believed that they had put enough Federalist Society types on the High Court to ensure that ROE v. WADE was going to be overturned. Yet Casey surprised people. Not only was ROE not overturned, what the court called its "essential holding" was specifically retained. This was due to the emergence of a "centrist bloc" consisting of Antony Kennedy, David Souter, and ... Sandra Day O'Connor. Although their decisive opinion in CASEY was put out as a joint opinion -- no one author among the three -- O'Connor was the one of the three with the greatest seniorit...
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What kind of blogger would I be if I didn't have a thought about this subject? In my case the arguments on abortion before the Supreme Court last week sent me back, not to 1973, but to 1992. It is worthwhile to note that 2021 this isn’t the first time Roe has seemed on the verge of demise. In 1992, after two Republican presidents over twelve years had made five Supreme Court appointments, there was a widespread expectation that the Court’s decision that year in Planned Parenthood v. Casey would overturn it. After all, both Reagan and Bush the elder had made a point of seeking jurists who would overturn Roe v. Wade . A friend of mine was working for what one may call a junk mail processer at the time. He tells me that among the items of mail they processed was a call for donations from a pro-abortion rights group. The letter began, "The Supreme Court has just eliminated the constitutional protection for...." It asked for the money to figh...
Another term of the US Supreme Court has come and gone. Of course it hasn't really ended for you, my devoted readers, until you've had a chance to see what Christopher Faille thinks of it. So here we are. There are many decisions this term that involve very important and topical matters that won't be discussed here or that (as in the case of state taxation of online sales) will only be glancingly mentioned. When that happens, it may be for no reason better than that they have been much covered and I have nothing in particular to add about them. I was tempted, when I first started outlining this material, to spend a fair amount of space on LAGOS v. US, an interpretation of the criminal restitution statute, that is, a statute aimed at getting the guilty to pay for the costs of enforcing the law against them. But I have overcome that temptation. Here, instead, is a very summary statement. In a unanimous opinion by Justice Stephen Breyer the Court adopted a narrow view o...