Wednesday, April 18, 2007

SCOTUS showing its hand?

Rick Hassen had an interesting thought regarding the Supreme Court's decision to uphold a late term aboriton statute in relation to how it might handle the Wisconsin Right to Life case:
More significantly, the case shows that the new Roberts Court, despite claims of modesty, is not afraid to overturn precedent even if there are significant reliance interests involved. I've filed an amicus brief with Richard Briffault giving the Court a modest way to decide WRTL II, but I've also written that supporters of campaign finance regulation should be very afraid of this case specifically and of the Roberts' Courts approach to the campaign finance cases more generally. As Marty Lederman observes as well, Justice O'Connor's departure means cases like McConnell v. FEC are subject to being overruled---as early as this term.

It does appear that the Chief Justice may not be as shy to toss stare desis out the window for selected cases, despite his confirmation hearing testimony. It remains to be seen if this extends to WRTL II or not. I'm planning on attending the oral arguments next week... it's generally difficult to guage most Justices' opinions based on their questions, but I will be paying close attention to the Chief Justice and Justice Alito for this one.

No comments: