Wilson Huhn has posted an article
discussing in detail the likely effects if President Obama were to have
the chance to replace any of the five nonliberals on the Supreme
Court. Huhn argues that a large number of cases would be likely to be
overturned. He basically divides up the cases into those that he
believes will be overruled and those who believes will probably or might
be overruled. I generally agree with his assessments.
In the category of those he predicts will be overruled are:
Citizens United v. FEC (protecting under the First Amendment contributions from corporations and unions);
Zelman v. Simmons-Harris (allowing government to provide vouchers for children to attend parochial schools);
Van
Orden v. Perry (allowing Texas to place the Ten Commandments on the
state capitol under circumstances suggesting the non-religious message
predominates);
NFIB
v. Sebelius (five members of the Court concluding that the Commerce
Clause does not allow Congress to mandate the purchase of health
insurance)
There are a greater number of cases in the category of might or probably would be overruled, including
The cases allowing political gerrymandering;
Heller and McDonald (applying an individual right to keep and bear arms outside of the militia context);
Lorillard v. Reilly (holding Massachusetts ban on certain tobacco advertising was unconstitutional).
Claims
of this type about the effects of a presidential election on
constitutional law are often made. But they often do not pan out either
because the nonliberal justice does not step down or other
circumstances intervene (for example, even if the nonliberal justice is
replaced by a liberal a Republican President might be elected in 2016
and a liberal justice might then be replaced).
Still, what is
striking about the article is how many cases are predicted to be
overruled. The Supreme Court claims to follow precedent, but their
precedent rules do not do much to constrain them, especially as to
controversial cases.
Posted at 7:21 AM