The Effects of Replacing a Nonliberal Justice with a Liberal Justice

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.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Brett Bellmore says

    “The Supreme Court claims to follow precedent,”

    The members who don’t proclaim themselves living constitutionalists make such a claim. But saying you’re a living constitutionalist is, fundamentally, a rejection of precedent.

  2. Jordan says

    The greatest tragedy would be the Court overruling Zelman. I’m not sure why Huhn thinks Obama appointees would drive a strict separation doctrine. Hosana-Tabor, whatever its scope may be, was a unanimous decision. Souter and Stevens seemed quite hostile to public displays of religious symbols and to parochial school vouchers. Do their replacements take the same view?

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