Saturday, May 1, 2010

Proposed Amendments to Arizona Immigration Law SB 1070

The Arizona House of Representatives has proposed amendments to the controversial Arizona Immigration Law SB 1070 signed just last week.

Arizona HB 2162 (NOW: immigration; border security) would amend SB 1070 as follows:

  • Changes “lawful contact” to “lawful stop, detention or arrest.” Picture 6  
  • Stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.
  • Stipulates that a reasonable attempt must be made, when practicable, to determine the immigration status of a person, except if the determination may hinder or obstruct an investigation when reasonable suspicion exists that the person is an alien and is unlawfully present in the U.S.
  • Removes “solely” from the provision relating the prohibition on discriminatory enforcement.
  • Stipulates that for the Enforcement of Immigration Law, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens the immigration status may be determined by:
  •  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
  •  ICE or CBP pursuant to 8 U.S.C. § 1373(c).
  •  Specifies that 8 U.S.C § 1373 and 8 U.S.C § 1644 are included in the federal immigration laws relating to challenges regarding policies adopted or implemented by an entity.
  • Stipulates that for the enforcement of Willful Failure to Complete or Carry an Alien Registration Document, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens a law enforcement official or agency cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

The proposed amendments address some of the equal protection and fourth amendment challenges in the complaints filed in federal district court which we discussed here and here, but do not substantially change the preemption arguments also made in the complaint which we discussed here.  Our original post is here with update here.

Arizona Republic story on the proposal here.

{Update: Arizona immigration statute partially enjoined; here}


May 1, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, International, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (9) | TrackBack (0)

Federalist Society Launches Supreme Court Nomination Site

SCOTUSreport is a new site from the Federalist Society.   Seal_of_the_United_States_Supreme_Court  

The site seeks to "collect in one place the key news and documents, as well as commentary from across the legal, political and philosophical spectrum, regarding the upcoming Supreme Court nomination."


May 1, 2010 in Appointment and Removal Powers, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, April 30, 2010

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}


April 30, 2010 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Procedural Due Process, Race, Reconstruction Era Amendments, Supremacy Clause | Permalink | Comments (3) | TrackBack (0)

Thursday, April 29, 2010

Complaint Challenging Constitutionality of Arizona Immigration Law SB 1070

A lawsuit challenging the constitutionality of Arizona's new immigration law SB1070 has been filed today in the United States District Court for the District of Arizona.  The  Complaint alleges violations of

  • the due process clause of the Fourteenth Amendment, 
  • the equal protection clause of the Fourteenth Amendment,
  • the speech clause of the First Amendment,
  • the Fifth Amendment,
  • the Fourth Amendment,
  • and of preemption (see our analysis here) and unauthorized or supervised federal immigration conduct.

The plaintiff, Martin Escobar, alleges he is "Hispanic" and "is employed as a permanent Police Officer with the City of Tucson for the Tucson Police Department."

Picture 2

The Arizona Star story is here.  See more discussions of SB1070 here.

[UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here].


April 29, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Preemption | Permalink | Comments (3) | TrackBack (0)

Bills Respond to Citizens United

Senator Chuck Schumer and Representative Chris Van Hollen introduced companion bills today in the Senate and the House to restrict expenditures on certain electioneering communication and to increase reporting and disclosure requirements for others in response to the Supreme Court's decision in Citizens United v. FEC.   

The DISCLOSE Act would prohibit expenditures by governmental contractors, TARP recipients (but only taxpayer funds), and by foreign nationals, and bolster expenditure reporting and disclosure requirements (upheld in Citizens United).  Senator Schumer's summary is here

(Can you guess what DISCLOSE stands for?  Get ready: Democracy Is Strengthened by Casting Light On Spending in Elections.)

President Obama issued a statement today, calling the legislation "urgent" in the aftermath of Citizens United.


April 29, 2010 in Congressional Authority, Elections and Voting, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Cameras in the Courtrooms?

The Senate Judiciary Committee today voted out three bills that would provide for and encourage televised broadcast of federal court proceedings.

The most significant measure, S. 446, would require the Supreme Court to open its proceedings to television coverage:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The provision is controversial: The media and open government advocates push for televised proceedings, but the Court has balked--providing only transcripts of oral arguments (and only very rarely audio recordings) on the day of arguments.  The Senate bill requiring televised proceedings also raises serious separation-of-powers concerns.  As Justice Kennedy has said, "It is not for the Court to tell Congress how to conduct its proceedings . . . .  We feel very strongly that we have intimate knowledge of the dynamics and the mood of the Court, and we think that proposals mandating and directing television in our Court are inconsistent with the deference and etiquette that should apply between the branches."

A second bill, the Sunshine in the Courtroom Act of 2009, S. 657, would authorize (not require) a presiding judge in the lower federal courts to permit broadcast of courtroom proceedings, thus dodging the separation-of-powers concerns in S. 446.  The third measure, S. Res., simply expresses the sense of the Senate that the Supreme Court should permit televised proceedings if they don't violate a party's due process rights. 

The Senate's move comes in the wake of the Supreme Court's order earlier this year staying the television broadcast of the Prop. 8 case--the same-sex marriage case--in California.


April 29, 2010 in Congressional Authority, Current Affairs, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 28, 2010

Arizona's Immigration Law, Supremacy, and Federal Preemption

Does Arizona's new immigration law, SB 1070, violate the Supremacy Clause of the U.S. Constitution?  It may, in (at least) two ways.


First, Arizona's immigration law, which authorizes state and local law enforcement officials to inquire into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," runs up against the comprehensive federal scheme in Title 8 U.S.C. that governs treatment of aliens.  Congress enacted Title 8 pursuant to its plenary power under Article I, Section 8 of the Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  The federal scheme reflects Congress's judgment to completely occupy the field of immigration and naturalization (with an important exception, discussed below)--a judgment that is well within its powers until Article I, Section 8--and the comprehensive federal scheme therefore likely preempts Arizona's new law.  The new law is almost certainly invalid under the Supremacy Clause.

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption.  The federal immigration and naturalization scheme includes a place for state and local authorities.  8 U.S.C. Sec. 1252c reads:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role.  Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above.  Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227.  Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

This isn't the first time that Arizona law came under challenge as running up against federal immigration law.  Just last year, the Ninth Circuit in Chicanos por la Causa v. Napolitano upheld Arizona's Legal Worker Act against a preemption challenge.  That act allows Arizona courts to revoke or suspend business licenses of employers who knowingly or intentionally hired unauthorized aliens.  But there the federal law, which prohibited employers from hiring unauthorized aliens, contained a specific savings clause that exempted state and local sanctions related to licensing from the broader preemption of state enforcement.  Arizona's law in that case fell squarely within this savings clause, and the court ruled that the Legal Worker Act was therefore not preempted.  (The Ninth Circuit also took its lead from De Canas v. Bica, the 1976 Supreme Court case that upheld a state law prohibiting employers from hiring unauthorized aliens, because the employment relationship is "within the mainstream of the state's police powers.")

The new law is different.  It regulates aliens directly, not by way of the employer-employee relationship (which is more obviously within the traditional powers of the state).  And the new law doesn't fall within a savings clause to a broader preemption provision; instead, it seems to run directly up against the corresponding federal law.

We've posted previously on the Arizona law here and here.  Jack Balkin posts his thoughts on preemption here; Jonathan Adler responds here.

UPDATE:  The law as enacted addresses some of these problems, but it does not solve them.  Thus, for example, Section B. requires "any lawful stop, detention or arrest" (not merely "any lawful contact") by a law enforcement official "in the enforcement of any other law or ordinance of a county, city or town or this state" (not merely for no reason) in order to trigger the "reasonable suspicion" standard.  This helps dodge the second conflict problem above (under the old section E. and 8 U.S.C. Sec. 1227), but not the first one (under 8 U.S.C. Sec. 1252c).  And it does nothing to dodge the field preemption problem.

Other sections of the law, too, are likely preempted under field and conflict theories.  Thus Sections C. and D. authorize state officials to securely transport an unauthorized alien to federal authorities upon release from state prison or on the assessment of any monetary fine.  This, too, runs up against 8 U.S.C. Sec. 1252c, because it does not require a felony or deportation or departure from the country, and violates field preemption.  Section F. authorizes the state to maintain immigration records for certain purposes; this, too, probably violates field preemption.

UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here.

Update: Arizona immigration statute partially enjoined on July 28, 2010, see here.


April 28, 2010 in Federalism, News, Preemption | Permalink | Comments (16) | TrackBack (0)

Doe v. Reed, The Right to Remain Anonymous when Signing a Ballot Initiative: Oral Argument Analysis


Today's oral argument at the United States Supreme Court in Doe v. Reed (transcript here) revealed some skepticism about the claim that signing a petition should be protected by the First Amendment in order to avoid harassment. 

The background facts can be a bit confusing.  In 2009, the Washington legislature passed SB 5688, expanding nearly all state-wide spousal rights and responsibilities to registered domestic partners, and commonly known as the “everything but marriage” law.   Opponents of the legislation sought to negate SB 5688 through a ballot initiative, Referendum 71.   Under Washington law, like most states that allow voter-initiated referendums, the process requires a certain number of valid signatures on petitions supporting the ballot initiative process.  The Secretary of State certified the Referendum for the November 2009 election with approximately 1,000 signatures to spare and an almost 12% error rate (signatures rejected) and prepared the ballot summary: A YES vote on Referendum 71 APPROVED SB 5688 expanding domestic partnership. Referendum 71 passed and SB 5688 became law.  

John_hancock_signature_civics What is at issue in Doe v. Reed, however, is the disclosure of the signatures on the petitions.  

The Washington Public Records Act (PRA),  RCW 42.56, governs the disclosure of public records.  The state contends that the petitions with signatures are public records that need to be certified before the referendum can be placed on the ballot, and also contends that the signature gathering was done in public places and presented to the Secretary of State in a public forum.  The challengers to PRA, the "Does" and Protect contend that the disclosure of the signatures violates the First Amendment: the signing of a petition is core political speech subject to strict scrutiny and that the state's interests in disclosure are not compelling.  One issue is what, if anything, does the signature mean?  During oral argument there was some discussion that a signature on a petition supports placing the issue before the voters and does not necessarily mean anything about the desired outcome, but there seemed to be little disagreement that there was a very strong correlation.

The challengers heavily rely upon the threat of intimidation, discussing in their briefs events surrounding California's Proposition 8.  Court watchers will also recall that the Supreme Court refused to allow the televising of the Proposition 8 trial in federal court; an opinion from the trial judge is still pending. Indeed, at times during the oral argument, members of the Court seemed to believe that the case arose in California rather than Washington.  However, there seemed to be little evidence in the record about intimidation in Washington and some procedural reasons why none was presented.   Moreover, this might be better suited to an as-applied challenge to the statute rather than a facial one:  "This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals,"  answered the Attorney general of Washington in response to a question from Justice Breyer.

Arguing for the Does and, James Bopp began : "No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations."

He was quickly interrupted by Justice Scalia who inquired about the analogy to campaign contributions, with Bopp agreeing and citing Buckley v. Valeo and Scalia asking why that doesn't fall within Bopp's principle that no person should be exposed to criticism for his political beliefs.  Indeed, Scalia expressed much skepticism regarding Bopp's argument:

the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.You are asking us to enter into a whole new field where we have never gone before. 

Scalia later derided the "touchy-feely, oh, so sensitive" sentiments, concluding that "you can't run a democracy this way, with everybody being afraid of having his political positions known."  

Justice Ginsburg inquired about the list of signatures as available to the organization, noting that the signatures on the petition could be used for marketing purposes, to which Mr. Bopp agreed.  

There was also a bit of a rebuke from Justice Kennedy:

JUSTICE KENNEDY: Well, let me -- let me ask you, could the opponents of a particular ballot measure organize a boycott for -- and picket businesses whose managers had supported that boycott.
MR. BOPP: Yes.
JUSTICE KENNEDY: Had supported that initiative?
MR. BOPP: Yes.
JUSTICE KENNEDY: Well, if that's -- if that's so, then under Claiborne Hardware, which I -- I notice you didn't cite in your brief, but if -- if that's so, then it seems to me that the State's -- or that -- that the signers' interest in keeping their names private is somewhat diminished.

In addition to the fraud rationale for requiring disclosure, Justice Stevens posed a public debate rationale:

JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?
Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it's possible, but we think this information is marginal.

Justice Alito, questioning Robert McKenna who argued for the State of Washington, seemed to accept the state's interest in preventing fraud, but pushed vigorously against the public interest in knowing who is supporting the election:

JUSTICE ALITO: Well, but how far does that go? When I asked whether you could -- you want to know the religion of the people who signed? No, you can't do that. How much more demographic information could be collect -- could be -- does the -- does the State of Washington have an interest in making publicly available about the people who support this election?  Let's say it's -- it's a referendum about immigration. Does the State of Washington have an interest in providing information to somebody who says, I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this? Is that -- that what you want to facilitate?

Before oral argument, it seemed to be easy to think about the signatures on the petitions by analogy:  Is the signature more like a legislative act, with little if any First Amendment protection given the countervailing interests of  open government.   Or more like an act of voting, with more First Amendment protection.  But during oral argument, this dichotomy broke down, especially given the historical appeals to secret voting as a recent development and not uniform in the United States.  

If the opinion reflects the oral argument, the state of Washington will most likely prevail.


April 28, 2010 in Cases and Case Materials, Current Affairs, Elections and Voting, Federalism, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Sexual Orientation | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 27, 2010

Update on Arizona Immigration Law SB 1070

There has been an outpouring of commentary and discussion of SB 1070 since our last post here.  

A few of the worthwhile materials include a NYT Room for Debate feature with Steven A. Camarota, Center for Immigration Studies; Hiroshi Motomura, UCLA immigration law professor; Dan Schnur, former adviser to John McCain; Tamar Jacoby, ImmigrationWorks USA; and Vivek Malhotra, ACLU.   All the commentators are good at analogizing to other legal controversies and are good examples of persuasive writing. 

Also on the NYT blog is an opinion piece by Linda Greenhouse.  Greenhouse takes a dim view of SB 1070; her opening might be thought to say all she has to say:

I’m glad I’ve already seen the Grand Canyon.

Because I’m not going back to Arizona as long as it remains a police state, which is what the appalling anti-immigrant bill that Gov. Jan Brewer signed into law last week has turned it into.

But Greenhouse's real contribution is her discussion of Plyer v. Doe, the 1982 case in which the Court (5-4) held unconstitutional a Texas statute denying public education to undocumented children. 

Governor Jan Brewer, who signed the bill into law, has been a focus of criticism, but her own statement is worth reading.  Brewer adamantly contends she is against "racial profiling" and that she

worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section…”

A good commentary, a bit off the beaten path, is from The Desert Lamp, a student blog out of University of Arizona.  The author Connor Mendenhall has some particularly insightful observations about how SB 1070 fits into larger questions of Arizona politics, even as he has a pretty solid legal analysis.

If you are a ConLawProf who hasn't yet written the exam you have to give in a very short time, SB 1070 provides some great issues and framework; our recent exam drafting discussion has other tips and observations.  The law might also provide a great basis for a Criminal procedure examination - - - one can easily imagine a fact pattern raising 4th, 5th, and 6th Amendment issues.

And finally, if you haven't yet viewed the Stephen Colbert and Jon Stewart treatments, they are certainly worth a look.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
The Word - Docu-Drama
Colbert Report Full EpisodesPolitical HumorFox News

The Daily Show With Jon StewartMon - Thurs 11p / 10c
Law & Border
Daily Show Full EpisodesPolitical HumorTea Party


April 27, 2010 in Cases and Case Materials, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Teaching Tips | Permalink | Comments (22) | TrackBack (0)

Monday, April 26, 2010

High Court to Rule on California's Violent Video Game Law

The Supreme Court today agreed to hear California's appeal of a Ninth Circuit ruling that overturned the state's restrictions on violent video games under the First and Fourteenth Amendments. 

The case, Schwarzenegger v. Video Software Dealers Ass'n, involves a facial free speech challenge to California's newly enacted sales restrictions on violent video games.  Under the law, "[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor."  A "violent video game" is a game in which a player engages in violent acts against an image of a human, if those acts do either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

The Ninth Circuit ruled that the California law was a content-based restriction subject to strict scrutiny, and that the state failed to articulate a compelling government interest, that the law was not narrowly tailored, and that the state could have adopted other, less restrictive alternatives to meet its objective.  The court thus overturned the law.

The issue before the Supreme Court is whether the Ninth Circuit should have applied strict scrutiny, or whether it should have applied the deferential "variable obscenity" or "obscenity as to minors" standard first mentioned in Ginsberg v. New YorkGinsberg held that states could prohibit the sale of sexually-explicit material to minors as long as "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."  This rational basis standard applied even though the material would not have been considered obscene for adults.

The choice of tests here is similar to the choice the Court faced just last week in U.S. v. Stevens.  In that case, the Court declined to carve out a new category of unprotected or lesser-protected speech for crush videos (depicting cruelty to animals), because crush videos have not been "historically unprotected" and didn't otherwise fit neatly into an established category.  So too, violent video games: While some of the content in some of these games may fit well with obscenity or "obscenity as to minors," much of it does not and otherwise defies easy categorization.

If the Court in Video Software is as reluctant to categorize as it was in Stevens, look for it to apply strict scrutiny as a content-based restriction on speech.  Then the Court will examine more carefully the link between violent video games and physical and psychological harm to minors--a link that the Ninth Circuit ruled the state failed to establish.


April 26, 2010 in Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Stevens on Abortion

US_Supreme_Court_Justice_John_Paul_Stevens_-_1976_official_portrait Linda Greenhouse's Justice John Paul Stevens as Abortion-Rights Strategist is a terrific article in the latest issue of the UC Davis Law Review's excellent symposium on soon-to-be-retired Justice Stevens.  Greenhouse seeks "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need."  She notes that her supporting evidence is "hiding in plain sight in the pages of the United States Reports."   But, for the "backstory to the cases in which Justice Stevens participated," she relies on the collected papers of Justice Harry A. Blackmun in the Library of Congress.  Greenhouse is certainly an expert in Blackmun's papers, using them extensively in her biography Becoming Justice Blackmun.  Here, her impressive reportorial skills and her incisive analytic skills combine to produce engaging scholarship.  

For example, Greenhouse discusses Webster v. Reproductive Health Services., 492 U.S. 490 (1989), considering the statutory preamble that “life of each human being begins at conception.” Chief Justice Rehnquist's plurality opinion said this statement was without operative force, simply a “value judgment” that the state could make without a need for judicial scrutiny:

Justice Stevens saw the matter otherwise: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution,” he wrote in his separate opinion, concurring in part and dissenting in part.
Stevens was “deeply concerned about the future of the right to abortion. He sent an acerbic response to Chief Justice Rehnquist upon receiving his draft majority opinion (which did not turn out to be a majority opinion because Justice O'Connor, adopting a more cautious stance, declined to join it). Chief Justice Rehnquist did not explicitly call for overruling Roe. Rather, he wanted to replace the strict scrutiny analysis of Roe with a new standard under which a regulation would be upheld if it “reasonably furthers the state's interest in protecting potential human life.”

“A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test,” Justice Stevens objected in a letter to Chief Justice Rehnquist, with copies to the other Justices. The letter ended: “As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”

How Roe v. Wade will be tossed about in future years depends, in part, on the Justice who will take Stevens' place.  Greenhouse reminds us that Stevens was the first Justice to be appointed after Roe v. Wade was decided.  Stevens was also the last of his kind:  "the last Republican-appointed Supreme Court Justice who was not vetted in light of the party's official opposition to Roe" and the last Justice to join the Court "before abortion became an essentially partisan issue."


April 26, 2010 in Abortion, Cases and Case Materials, Reproductive Rights, Scholarship | Permalink | Comments (1) | TrackBack (0)