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Justice O'Connor's Fragile Legacies

By Jack M. Balkin

Joan Biskupic has a story today about how "much of [Justice O'Connor's] legal signature already is fading from the court." Joan generously cites me as someone "who has been tracking the fate of O'Connor precedents since she retired." She is referring to a post of mine to SCOTUSblog back in July 2005, listing almost three dozen precedents that were the most vulnerable in the wake of Justice O'Connor's retirement.

Last year, in a comment to a post by Michael Dorf on 5-4 decisions that might have come out differently if Justice Alito had not replaced Justice O'Connor, and in a post here, I republished a slightly updated list, which is limited to cases decided in O'Connor's final decade on the Court. I reiterated there that there were five high-profile constitutional areas where overruling was a serious possibility -- and the Court has already taken big bites out of the O'Connor precedents in three of those areas:

1. Abortion, where the Court in Gonzales v. Carhart effectively overruled the standard for facial challenges in abortion cases, established in Stenberg v. Carhart (2000)).

2. Race-conscious assignments and affirmative action. In last Term's decisions in the Seattle and Louisville race-conscious student-assignment cases, the Court severely compromised the impact of the Court's 2003 decision in Grutter v. Bollinger.

3. Campaign Finance Regulation. In the Wisconsin Right to Life case, the Court in effect invalidated the 60-year-old requirement that corporations and unions must use separate designated accounts (PACs), rather than general treasury funds, to finance election-related expenditures. The Court, in an opinion co-authored by Justices Stevens and O'Connor, had just recently upheld that restriction by a 5-4 vote in McConnell v. FEC (2004). In future years, the Court might also reconsider the basic Buckley v. Valeo/McConnell precedents that permit reasonable restrictions on campaign contributions.

4. Establishment Clause. In particular, the Court could depart from Justice O'Connor's "middle-ground" position on state displays of religious expression (see, e.g., McCreary County v. ACLU (2005) (Ten Commandments displays)); and, more importantly, the Court could retreat from nearly 40 years of precedents prohibiting the provision of "direct" financial aid (as opposed to vouchers) from government to religious schools and institutions. Justice O'Connor's concurrence in Mitchell v. Helms (1999) is currently the governing precedent.

5. Congress's powers to remedy discrimination under the Reconstruction Amendments, such as section 5 of the Fourteenth Amendment. See Tennessee v. Lane (2004).

I also noted that "[b]ecause most Justices consider stare decisis a more serious obstacle to overruling in cases of statutory construction (rather than constitutional interpretation), precedents below involving statutory construction (e.g., the Davis and Jackson decisions on title IX of the Education Act Amendments (sex discrimination)) might be more secure than many of the constitutional precedents, even if Justice Alito would not have voted the same way as Justice O'Connor as a matter of first impression."

Sure enough, last week's decisions in the two retaliation cases basically reaffirmed Justice O'Connor's decision in Jackson -- and did so expressly on the basis of a strong stare decisis presumption.

Anyway, here is that list again, of cases decided in the decade between 1995 and 2005 in which Justice O'Connor's was the decisive vote or opinion, and as to which a more conservative Justice such as Justice Alito might well vote to overrule the governing precedent (assuming, in each case, that Chief Justice Roberts would vote in accord with Chief Justice Rehnquist). (Of course, Justice Alito's vote might correspond to Justice O'Connor's in some unknown percentage of these cases.):

Central Virginia Community College v. Katz (2006) -- involving sovereign immunity and the Bankruptcy Clause, and decided on Justice O'Connor's final day in office

Jackson v. Birmingham Board of Educ. (2005) -- Title IX (sex discrimination) liability for retaliation

Rompilla v. Beard (2005) -- standard of reasonable competence that Sixth Amendment requires on the part of defense counsel

Johanns v. Livestock Marketing (2005) -- financial assessments imposed to pay for government speech

Smith v. Massachusetts (2005) -- double jeopardy

Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions

Tennessee v. Lane (2004) -- Congress's section 5 power

Hibbs v. Winn (2004) -- Tax Injunction Act

Alaska Department of Environmental Conservation v. EPA (2004) -- EPA authority under Clean Air Act to issue orders when a state conservation agency fails to act

McConnell v. FEC (2004) -- campaign finance (especially corporate PAC requirement)

Groh v. Ramirez (2004) -- Fourth Amendment sufficiency of non-particularized search warrant

Grutter v. Bollinger (2003) -- affirmative action

Brown v. Legal Foundation of Washington (2003) -- no takings violation in IOLTA funding obligation

American Insurance Ass'n v. Garamendi (2003) -- presidential foreign-affairs "pre-emption" of state law

Stogner v. California (2003) -- ex post facto clause as applied to changes in statutes of limitations

Alabama v. Shelton (2002) -- right to counsel

Rush Prudential HMO v. Moran (2002) -- upholding state laws giving patients the right to second doctor's opinion over HMOs' objections

Kelly v. South Carolina (2002) -- capital defendant's due process right to inform jury of his parole ineligibility

FEC v. Colorado Republican Federal Campaign Committee (2001) -- upholding limits on "coordinated" political party expenditures

Zadvydas v. Davis (2001) -- prohibiting indefinite detention of immigrants under final orders of removal where no other country will accept them

Easley v. Cromartie (2001) -- race-based redistricting

Rogers v. Tennessee (2001) -- "judicial" ex post facto

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) -- state action

Stenberg v. Carhart (2000) -- "partial-birth abortion" ban

Mitchell v. Helms (1999) -- direct aid (especially financial aid) to religious schools

Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for not preventing student-on-student sexual harrassment

Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors

Richardson v. McKnight (1997) -- private prison guards not entitled to qualified immunity in section 1983 suits

Camps Newfound/Owatonna v. Town of Harrison (1997) -- dormant Commerce Clause

Morse v. Republican Party of Virginia (1996) -- provisions of the Voting Rights Act are constitutional as applied to choice of candidates at party political conventions

Schlup v. Delo (1995) -- habeas corpus, actual innocence claims

Full post as published by Balkinization on June 10, 2008 (boomark / email).