The Volokh Conspiracy

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Yes, The Supreme Court Has Reversed A Precedent Based Entirely On Its Wrongness

In the Legal Tender Cases, the Supreme Court reversed itself after two new Justices were appointed who favored the validity of paper money.


During oral arguments in Dobbs, the Solicitor General had to hold a difficult line: the Supreme Court should not overrule a case simply because it was wrong. Justice Alito highlighted this position with a devastating line of questions.

JUSTICE ALITO: Is it your argument that a case can never be overruled simply because it was egregiously wrong?

GENERAL PRELOGAR: I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn't done so in this case.

At this point, Justice Alito raised the obvious rejoinder:

JUSTICE ALITO: Really? So suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?

The answer should be, of course it would be sufficient. But the SG could not take that position. Doing so would undermine the federal government's insistence that wrongness is not sufficient to overrule a precedent.

GENERAL PRELOGAR: It certainly was egregiously wrong on the day that it was handed down, Plessy, but what the Court said in analyzing Plessy to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn't create a badge of inferiority, had been entirely mistaken.

In other words, the grounds for overruling Plessy only became clear in the five decades after the case. Huh? Plessy concluded that segregation didn't create badges of inferiority. But Jim Crow demonstrated that segregation did in fact create badges of inferiority. It took five decades, apparently, to demonstrate that separate was not equal. Much to my surprise, Justice Breyer also articulated this exact same perspective.

JUSTICE BREYER … Plessy was wrong when decided, but, just a minute, also remember Plessy said that separate but equal was a badge of inferiority. No, they said, it isn't. Well, all you have to do is open your eyes and look at the south, my friend, and you will see whether it was or it wasn't in 1954.

This position isn't completely irrational. Brown was premised on social science research that was published in the twentieth century.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.

In that regard, the Warren Court couldn't reach its decision until the Doll Test was performed. Remember, Brown rejected any reliance on original meaning. Only through modern-day understandings of education could the Court make its ruling. And to be clear, Brown didn't actually overrule Plessy. The Court simply concluded that "in the field of public education, the doctrine of 'separate but equal' has no place."

Prelogar and Breyer did not make this argument. Instead, the Solicitor General had to tap-dance around Alito's questioning.

JUSTICE ALITO: So is it really . . . your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided? Would you answer my question? Had it come before the Court in 1897, should it have been overruled or not?

GENERAL PRELOGAR: I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the Court realized that and clarified that when it overruled in Brown.

I've read this sentence several times. I still don't understand it. Neither did Justice Alito.

JUSTICE ALITO: But your answer is --I don't --I still don't understand --I still don't have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled? Yes or no? Can you give me a yes or no answer on that?

Here, Justice Alito laid another trap. SG Prelogar should have hedged. But she didn't. She gave an absolute, unequivocal answer.

GENERAL PRELOGAR: This Court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance.

When I write, I try to avoid absolute words like "never" and "always." Even a single instance can prove these assertions wrong. And indeed, there is one such case in which the Supreme Court overruled a precedent, based entirely on a conclusion the decisions was wrong, without regard to any new facts or new legal arguments.

In Hepburn v. Griswold (1870), the Court held that Congress lacked the power to require people to accept paper currency as legal tender. When Hepburn was argued in November 1869, there were only eight Justices on the bench. After arguments the vote was 5-3. The majority, per Chief Justice Chase, concluded that the Legal Tender Act was unconstitutional. However, in January 1870, Justice Grier resigned due to his poor health before the decision was formally announced. This vacancy made the final vote 4- 3. After Hepburn was decided, President Grant appointed Justices Strong and Bradley. They were known to support paper money as legal tender, which Grant also favored. Following their confirmations there were now five Justices who thought that the Legal Tender Act was constitutional. Sure enough, the Court reversed itself a year later. Knox v. Lee (1871) held that the Legal Tender Act was constitutional. Hepburn was now overturned by a 5- 4 vote.

In Knox, Chief Justice Chase's dissent spoke to the Court's approach to stare decisis:

A majority of the court, five to four, in the opinion which has just been read, reverses the judgment rendered by the former majority of five to three, in pursuance of an opinion formed after repeated arguments, at successive terms, and careful consideration; and declares the legal tender clause to be constitutional; that is to say, that an act of Congress making promises to pay dollars legal tender as coined dollars in payment of pre-existing debts is a means appropriate and plainly adapted to the exercise of powers expressly granted by the Constitution, and not prohibited itself by the Constitution but consistent with its letter and spirit. And this reversal, unprecedented in the history of the court, has been produced by no change in the opinions of those who concurred in the former judgment.. . . We adhere to the opinion pronounced in Hepburn v. Griswold. Reflection has only wrought a firmer belief in the soundness of the constitutional doctrines maintained, and in the importance of them to the country.

To paraphrase Justice Stevens in Citizens United, the only relevant thing that changed between Hepburn and Knox was the composition of the Court. Knox v. Lee is precisely the case that Justice Alito asked about: the Supreme Court reversed itself in the span of one year, based entirely on the conclusion that the prior decision was wrong.

Randy and I discuss both of these cases in 100 Cases. I'm surprised they didn't come up in any of the Solicitor General's moots.

Update: A colleague writes in with a far more-recent reversal:

I think you could also point to a more recent pair of rulings: Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943).

Unlike the legal tender cases, this wasn't just a matter of replacements shifting who was in the majority. Only two members had changed (Hughes to Jackson, and McReynolds to Rutledge). But that alone would have only changed an 8-1 vote to 6-3, with the same outcome.

The key reason that 8-1 became 6-3 the other way was that three members (Black, Douglas, and Murphy) changed their minds. The opinion for the majority in the second case explains the four assumptions underlying the prior case that they now believe were mistaken, and the three who changed wrote a concurrence explaining why they were doing so. There was nothing meaningfully different in the facts or circumstances, as far as I can tell. They simply felt differently about the decision three years later.

Again, advocates should really hesitate before saying words like "always" and "never." It is so easy to slip up.

NEXT: What's going on with Dobbs and the S.B. 8 Cases?

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  1. There is a good argument you could overrule any precedent at any time if it was abundantly clear it was wrongly decided based on the law and facts at the time it was originally decided. Perhaps that's true for Plessy, but it is not true for Roe.

    1. There was a line of Supreme Court cases prior to Brown, involving higher education, that undercut Plessy. See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950).

    2. Opinion. Here's mine: it most certainly was wrongly decided. It pulled something out of thin air that never existed in the constitution before, and declared it a right. If any decision over the past 100 years should be overturned, it's this one.

      1. Discovering a new unenumerated right is in alignment with the idea The People retain their rights.

        Discovering new government control over things that were rejected all along, without going through the amendnent process, is in alignment with the idea officials are power hungry weasels, and are continuously growing their own power at their own, easy insistance. Dictators are as dictators do.

        1. "Discovering a new unenumerated right is in alignment with the idea The People retain their rights."

          Sure, and if they'd found a right that actually had any basis in American history, instead of pulling one out of their ass like that, you'd have a point.

          A right to pursue a profession. A right to raise your own children as you see fit. A right to farm. A right, if you have the franchise, to vote for anybody you damned well please, not just whoever the government deigns to permit ballot access. Any of these would be solid candidates for 9th amendment rights, with a well grounded historical basis.

          But, abortion? It's a terrible candidate. A common law crime that transitioned into being a statutory crime? All they did was pick a side in a cultural battle that was by no means settled, and hand the side they liked a win.

          1. You pulled the right to procreation out of your ass, assuming absence of evidence was evidence of forbiddance. And then blaming your low standards on a paucity of evidence.

            Hey look, you made up some other stuff as well in this very comment!

            You're actually a living constitutionalist, you ask your gut what's fundamentally American and 'historical' as much as any Warren Court Justice.

            1. More basically, the proposition that an unenumerated right has to have a basis in American history is made up as well.

              1. Then what’s the limiting principle? What’s to prevent the Court from announcing “rights” based purely on their policy preferences. It’s just Lochner all over again.

    3. I happen to think Roe was correctly decided but badly reasoned.

      However, when you say:

      "There is a good argument you could overrule any precedent at any time if it was abundantly clear it was wrongly decided based on the law and facts at the time it was originally decided."

      Combined with:
      "but it is not true for Roe."

      It is in no way sufficient to simply assert that it is not true for Roe.

      1. I make that assertion based on the observation that folks pretty much are making the same arguments for and against it today that they have for the past 50 years. With stubborn disagreement like that, it's very likely it is not abundantly clear Roe was wrong.

        1. Actually, that very history of continued disagreement is the strongest evidence that Roe was wrong. Not necessarily wrong in social policy but wrong as a matter of law. More specifically, that the error was in the Court thinking that it could step in and usurp the decision from the Legislature.

          1. I don't believe the stare decisis doctrine includes overruling cases on the basis they 1) took an issue out of the hand of the elected branches and 2) no consensus has formed about the correctness of the decision.

            1. If obvious judicial overreach is not currently a basis for overruling a case, it certainly should be.

              1. "Obvious judicial overreach" is in the eye of the beholder.

                1. The fact that you can say that with a straight face just proves there is a fundamental problem with the judicial system as a whole.

                  1. No, it proves your argument is too subjective to have any real weight.

                2. Granted - but that's not a rebuttal that supports your initial claim that stare decisis couldn't (or shouldn't) consider it as a factor at all.

                  1. I didn't make that argument. To the contrary, I said, "There is a good argument you could overrule any precedent at any time if it was abundantly clear it was wrongly decided based on the law and facts at the time it was originally decided."

        2. The only arguments I see being made for Roe are "Legal abortion is good public policy, and therefore, it should be protected by the Constitution."

      2. MSlyfield comment - "Actually, that very history of continued disagreement is the strongest evidence that Roe was wrong. Not necessarily wrong in social policy but wrong as a matter of law. More specifically, that the error was in the Court thinking that it could step in and usurp the decision from the Legislature."

        Concur - very similar to the reasoning in Ogerfell -

        We as a society outlaw lots of activities that a majority of society finds bad - We as a society create laws against thing we as dont like even though some segments of society like those things

        Speeding for a simple example - not being allowed to speed is against our "Liberty"

        Same with other activities
        sex with underage girls
        marriage between siblings and cousins
        Marriage before the age of consent
        etc, etc.

        All of those activities would be considered to be against one's "liberty" ( note in the case of abortion, it is definitely against the liberty of the abortee)
        The point is that all of these are the province of the democratic process. Ogerfell, Roe and Casey are based on the policy preferences of the judges. The legal rationale in those cases support the overturning of any law that the judge dislikes. That is the real problem with Ogerfell , Roe and Casey.

        - caveat - I am pro life while at the same time have been in favor of creating gay marriage statutes similar to the family code in most states long before ogerfell

    4. Of course it is true of Roe. The Court's reliance on the science of fetal development when Roe was considered and decided has been proven wrong by later technological advances. As an example, see: The Obsolete Science Behind Roe v. Wade, WSJ, 10/28/21.

      1. The article is behind a paywall. Can you summarize it?

        1. "At that “point in the development of man’s knowledge,” as Justice Harry Blackmun put it in Roe, there was simply no consensus about when life begins."..."As a diagnostic radiologist"..."Ultrasound technology was in its infancy in the 1970s, when there was much more uncertainty about life before birth."..."These are the patients I encounter daily in my work as a radiologist. Clearly human, clearly alive, no longer mysteriously hidden from the eyes and knowledge of man"

          1. Blackmun asserted that "We need not resolve the difficult question of when life begins" and are "not in a position to speculate as to the answer" in order to reach Roe's conclusion.

          2. I have to push back against your conclusion. Despite all the advances in technology and science, we still don't have consensus about when life begins.

            The simple reason for that is that science can't ever answer that question. That's a question for morals or other philosophical approaches to knowledge to answer.

  2. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), overruled Minersville School District v. Gobitis, 310 U.S. 586 (1940), after just a three year timeframe.

    Of course, Gobitis did not engender two generations´ worth of reliance interests.

    1. I think that abortion access at least as broad as that protected by Roe v. Wade is good policy, and I'm sympathetic to the suggestion it should be constitutionally protected. But what exactly is the reliance interest here? It seems to me that anyone who was going to change their behavior on an individual level had an ample opportunity to do so following the cert grant.

      1. One out of four American women of childbearing age has had or will have at least one abortion during her lifetime. Society has structured itself around women having control of their fertility, including being able to determine when or whether to have children.

        1. Can you give an example or elaborate? I can understand the problems with the possibility that states may restrict abortion more aggressively. I'm not seeing the reliance issue.

          1. What the Supreme Court said in Casey is just as true now as it was in 1992:

            Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

            To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.

            1. IOW, shouldn't be reliance interests because people could almost immediately, and effectively, respond to the legal change, but there would be because they might not want to.

              I really can't think of any other case where there'd be a reliance interest based on somebody just not wanting to change their behavior based on a change to the law. Doesn't it normally rest on a law producing adverse consequences from actions already taken? Not on people preferring not to adjust their actions going forward?

        2. re: "Society has structured itself around ..."

          No, it hasn't. A minority of people have based a few short-term decisions around that choice. You're going to have to provide some serious evidence to support a claim as strong as "society has structured itself".

          1. If, for example, legislatures eliminated child support obligations after Roe, I could see that argument. But they haven't, so I can't.

            1. That makes no sense. Child support existed before Roe. Child support exists in countries that don't allow legal abortion. Child support is neither increased nor decreased because of the possibility of legal abortion. Nothing about that supports your claim of "society structuring itself" around the possibility of legal abortion.

              1. "Child support existed before Roe."

                That would be why Nisiiko said "eliminated ... after Roe". Don't need to eliminate what doesn't exist in the first place.

                Nisiiko is being fairly clear. He gave an example of what would constitute "society restructuring itself", and pointed out it didn't happen. He was agreeing with you.

    2. Of course, Gobitis did not engender two generations´ worth of reliance interests.

      And Roe/Casey by definition engender only a few months' worth. So it sounds like we're on the same page for once.

    3. On the one hand, new facts had emerged, After Gobitis, Jehovah's witnesses were hunted, fired, prosecuted, and the court in Barnette responded to this new evidence. But it is a good example of a prompt reversal. In Barnette, the court asserted a right to remain silent. In cases like Tornillo, Wooley, Watchtower, NAACP v Alabama, Bates, this right became a right to privacy, and is the foundation for Griswold, which is the foundation for Roe.

  3. What changed between Bowers and Lawrence?

    1. Societal opprobrium of gays and lesbians lessened.

      1. I think that was mostly a consequence of the media making something like a quarter of the people you saw on TV gay, leading people to think it was much, much more common than it actually was.

        1. Or (contrariwise) maybe people saw gays were just ordinary people and not some evil threat that needed to be squashed into the ground. Given that's the viewpoint is held by the overwhelming majority of Americans today, you might consider it an alternate theory for why you lost public opinion, Brett....

          1. There's a huge difference between saying that gays need to be "squashed into the ground" and not thinking that their fake relationships should be celebrated. Ultimately, that's what a marriage license is. A society stamp of approval of a relationship.

            1. And why are their relationships "fake?"

              You are simply a bigot.

      2. Really, you have anything to back that up? It was a very short window.

        Not to mention that nothing of that was ever mentioned in the opinion.

        1. According to Gallup, a 57-32 majority felt homosexual conduct should be illegal when Bowers was handed down, but those numbers reversed by the time Lawrence was issued.

          1. I see where you are getting those numbers, but I wonder how much is attributable to the wording of the poll question.

            Had it been phrased, "Do you believe that sexual relations between consenting gay adults should be criminally punished?" I bet the "Yes" answers would have been far lower than 57%. The way the Gallup question was phrased could make people think that by answering "No" they were endorsing homosexuality, rather than the more common position at the time of "I don't care what consenting adults do in the privacy of their own homes as long as they don't shove it in my face."

            1. "Do you think gay or lesbian relations between consenting adults should or should not be legal?" strikes me as a question about criminality. But even if you are right, and the "Yes" answers would be lower with your wording of the question, I strongly suspect the downward trend in "Yes" answers would be the same (every question has the same trend towards acceptance of gays). The point being, perhaps to the surprise of Bored Lawyer, we have had a huge sea change in a short amount of time.

              1. I partially agree. I have seen the sea change in attitudes toward gay marriage. I don't think there has been nearly as much of a sea change in attitudes toward criminally prosecuting consensual private sodomy because I don't think there was that much of an appetite for it even in 1986. Bowers was an outlier. I'd wager 95+% of sodomy prosecutions were for "lewd behavior" in public restrooms and parks, or for acts between teenagers (the gay version of using statutory rape claims to punish your daughter's black boyfriend).

      3. "Societal opprobrium of gays and lesbians lessened."

        That changes the words in a Constitution?

        1. No. But, it changes the facts on the ground (people came to accept that homosexuality is who you are rather than what you do) to which the law is applied.

          1. Good reason to pass new laws, not a good reason to change an interpretation of static text.

            1. Of course the text is static. But, applying static text to changing facts can produce different results. In particular, I think applying "equal protection" to a trait (who you are) is a far different analysis than applying it to a behavior (what you do).

              1. "changing facts "

                Public opinion is not be a legally important fact. Its Living Constitution-ism at its purest to change law because opinion changes.

                1. The American Psychological Association submitted an amicus brief in Obergefell that includes how professional opinions on homosexuality, supported by research, have changed in the time periods before Bowers, between Bowers and Lawrence, and after Lawrence.


          We also have generational replacement due to the phenomenon of non-abortion, i.e. burdens of gestation - due or otherwise - and consequences thereof willingly assumed.

          So, when tracking public opinion on abortion regulation (or anything else) over time, it's not the same population (even if the question wording and the method used to approximate randomness of the sample remain the same). If the young generation that enters eligibility to be included in a poll (18 years of age in most polls presumably) has different attitudes than those who have died off since the prior comparison poll/survey, you can have a change in distributions of attitudes that's *not* caused by individuals actually changing their minds (or only in part). Internal and international migration can also complicate the picture, especially in the where the sample frame is geographically limited, such as to specific states or regions.

        3. No. But it does change the way we apply constitutional principles.

      4. and sphincters loosened.

    2. Wasson v Kentucky is a little known state con law case that preceded Lawrence. It is one small change, but worth reading.

  4. See United States v. Dixon, 509 U.S. 688 (1993) [opinion by Scalia] overruling Grady v. Corbin, 495 U.S. 508 (1990) [opinion by Brennan].

    1. Justice Scalia went out of his way to say that Grady was not being overruled simply because it was wrong.

  5. What changed is the Roe court thought they could put abortion beyond the bounds of public debate by ruling it a constitutional right.

    It's clear now they were wrong.

    1. Come on, you can do better than that ipse dixit.

      1. I don’t have to, I’m sure at least 1 of the 5 or 6 justices overruling Roe will do it for all of us.

        But I am glad that everyone now recognizes that the Burger courts rational “because we said so” no longer is the way to justify a court making law out of thin air.

        1. Stare has been a thing in all the Courts, including Burger and Warren. Whether it has been well executed or not is another question.

          As to your 'my argument can suck because the Supreme Court has my back' that's...not how that works.

          Your argument sucked. I hope you have better reasons to think what you think than that.

          1. Stare has been a thing in all the Courts, including Burger and Warren. Whether it has been well executed or not is another question.

            Pure linguistic gymnastics. When stare decisis gets you the result you want, it's the bedrock law of the land. When it doesn't, guess it wasn't "well executed" that time, but oh well -- here we are, and it sure can't be changed now because... STARE!!!!1

            1. Congrats on speculating your way into a hypothetical double standard for me. But sorry to disappoint you, I'm not the cartoon your partisan mind draws for you.

              I think there's a pretty good precedential predicate to overrule Roe at this point, actually. And I've said as much well before this.

              I'm a proceduralist and functionalist, as well as a liberal. I hope that doesn't blow your mind.

              1. I'm not the cartoon your partisan mind draws for you.

                Nah, cartoons are generally fun. You're amusing at times, but mainly tiresome.

                I'm a proceduralist and functionalist, as well as a liberal.

                Yes, at this point in our relationship, there's not a shred of doubt in my mind that you are whatever you need to be for a given conversation. To wit, here you suddenly pull support for overruling Roe out of your keister after the last day and a half of excoriating people taking that position. Seems to me you're just a career contrarian.

                1. there's not a shred of doubt in my mind that you are whatever you need to be for a given conversation.

                  Got any proof, or are you just projecting?

                  Starting conversations assuming the other person is arguing in bad faith seems a waste of time to me.

                  1. Got any proof, or are you just projecting?

                    For the same general reason I know it's futile to play your bring-me-a-rock "proof" game -- I've been around here for a long time.

                    Starting conversations assuming the other person is arguing in bad faith seems a waste of time to me.

                    My friend, arguing in bad faith is one of your go-to accusations around here. The fact that you would immediately raise this after invoking the word "projecting" is hilarious.

      2. What he is saying is accurate. O'Connor in Casey (and Breyer in the recent oral argument) both expressed the sentiment that the COurt had settled the issue once and for all. It clearly did not. Abortion continues to roil the country, both in the court of public opinion and in the courts, including SCOTUS.
        Contrast this with Brown v. Bd. of Education. That did spark considerable resistance for a decade or so, but by the late 60's, it was clear that segregation was gone and was never coming back. (At least until recently, when it has come back in the disguise of wokeness, but that is another matter.)
        It is clear that a large number of Americans continue to view abortion as a moral outrage, and another large number want it restricted, though not banned. If you are looking for a change in facts, that's a change -- the Court simply got the sociology wrong. (Not that sociology should make a difference, but if you think it does, that's a change.)

        1. O'Connor in Casey (and Breyer in the recent oral argument) both expressed the sentiment that the Court had settled the issue once and for all.

          Dunno about Breyer, but this is not what Casey says.

          Also, your argument ad popularum is not only a common fallacy, but it is especially not relevant to rights analysis.

        2. Abortion as an issue, and Roe in particular, wasn't really roiling anyone at the time. At Justice Stevens' nomination hearing, no one mentioned it or asked him about it. It only started roiling when a certain segment of the right weaponized it to whip up a certain segment of their base. Which is perfectly fine, as many constitutional scholars have pointed out, social activism like that is a perfectly normal way to drive changes in constitutional interpretation. Ohio Bob and his 'static text' may not like it, but it has happened again and again. Look at 2nd amendment jurisprudence. Look at women and 1st amendment jurisprudence.

  6. The Knox majority in fact went out of its way to explain that it was not overruling Hepburn simply because it was wrong, and in fact seemed to feel that it was important to provide additional justification.

  7. "Yes, The Supreme Court Has Reversed A Precedent Based Entirely On Its Wrongness"

    And ironically, it was a precedent that wasn't wrong...

    1. You think that paper money is unconstitutional? Based on what? Cliche, but, "the constitution is not a suicide pact". Surely it's not worth blowing up the global financial system over? Or, in the case of the initial decision, preventing said system from forming?

      1. That you don't coin paper, obviously. "Coining" money actually meant something, and that's the word they used.

        And it's not like script was unheard of, it was just in bad repute. So the omission of a power to issue it could likely be deliberate.

        And enough with this "not a suicide pact" crap. When they decided that the federal government should ban alcohol, there wasn't any problem with amending the Constitution to give the federal government that power. When they decided Prohibition was a bad idea, there was no problem with amending that power away again.

        1. "Coining" money actually meant something,

          What did it mean exactly? More precisely what did it mean that the Constitution gives Congress the power:

          To coin Money, regulate the Value thereof, and of foreign Coin, .....

          Could Congress mint coins out of zinc, or copper, and declare them worth one dollar?

          1. Possibly, if they'd wanted to be a laughing stock.

            Note that the "dollar" was a Spanish silver coin of high repute at the time, and the US "dollar" was meant to be basically interchangeable with it, that's why it was called that. The government under the Articles of Confederation had experimented with script, and it had been a disaster. They didn't try that again until the 1860's, it was hardly the least constitutional violation going on at the time.

            1. OK. First of all, you're driving me crazy. The word is "scrip," not "script."

              And why would they be a laughing stock? What if the government accepted payment of taxes in zinc dollars? And what does the Spanish coin, which was called a peso by the way, and only picked up the name "Spanish dollar" in London, among traders have to do with anything?

              And what differentiates gold or silver from zinc, anyway?

              1. NOBLE AND NOT SO NOBLE

                Gold is more durable, doesn't corrode. Still good hundreds of years later.

                As for zink, the Internet has it that ....

                "all zinc galvanized coatings are more corrosion resistant than bare iron or steel. Like all ferrous metals, zinc corrodes when exposed to air and water. However, zinc corrodes at a rate of 1/30 of that for steel. Also like other ferrous metals, zinc corrodes or rusts at different rates depending on its environment"

                1. Fair point, but only fair.

                  Copper has low corrosion, and bronze is lower than copper.

                  Precious metals do wear down, especially when used as coins, since they are handled often. They are also vulnerable to clipping, The official silver content of the Spanish dollar was 377 grains. When Hamilton, no fool, wanted to specify the content of the US dollar he had a sample of Spanish dollars weighed, and set the US dollar at 371.25 grains, the average weight of coins in the sample.

                  1. Indeed he did, and you're inadvertently making my point: They weren't setting out to create a fiat currency, they were doing their damnedest to avoid creation of one.

                    There's no constitutional basis for having a paper fiat currency. Our currency is supposed to be precious metal coinage.

                    You think that's a bad idea? Article V.

              2. Any answers, Brett?

                You seem to imagine that the Constitution requires precious metals as the basis of money. But it doesn't.

                And once you abandon that idea there is no substantive difference between issuing coins or issuing paper.

                1. Sigh.....

                  The question here is one of coinage, currency, and the use of coinage and currency within commerce. It involves several basic concepts which are escaping you.

                  1. A common currency within a nation is extremely useful. Prior to this, it was possible for each individual state to coin and/or issue its own currency. Such a situation creates a nightmare for commerce, if every state had its own currency. This is why the Federal government was granted the power to coin money, and regulate the value of such currency (and such power was taken from the state). Federalist paper 44 covers some of this.

                  2. Scrip currency is extremely vulnerable to high inflation. Especially during this time period. As such, it was sharply inferior to coinage.

                  3. When utilizing coinage, ideally the intrinsic value of the metal within the coinage is the actual printed value of coinage. Or at least close. Debasement of the coinage can lead to inflation (although it's harder than with scrip). In addition, coinage that is already issued (pre-debasement) is quite resistant to inflation.

                  4. The concept of using a "dollar" zinc coin is fairly ridiculous. If one was to use the intrinsic value, at today's prices, a $1 zinc coin would weigh about a pound. A $10 zinc coin would weight 10 pounds, and be impractical.

                  5. The other option is to simply print a value that didn't match the intrinsic value. That in many ways is worse than scrip, because you're just blatantly lying about it, and no one would trust it as valid currency.

                  6. The real issue here is, people need to trust your currency. If they don't trust it, they don't use it. They use something else.

                  1. You're full of shit.

                    Don't give me "sigh" and tell me basic concepts are escaping me. It's obnoxious, insulting, and false. So fuck you.

                    When utilizing coinage, ideally the intrinsic value of the metal within the coinage is the actual printed value of coinage.

                    Why? And what if the "intrinsic value" changes, as it will?

                    The concept of using a "dollar" zinc coin is fairly ridiculous. If one was to use the intrinsic value, at today's prices, a $1 zinc coin would weigh about a pound. A $10 zinc coin would weight 10 pounds, and be impractical.

                    Nothing impractical about it if we forget about intrinsic value and just declare a small zinc coin to be worth a dollar, or fifty cents, or whatever.

                    The one thing you say that is true is that "people need to trust your currency." But of course, they do, even though it is not based on precious metals. The dollar is by far the most widely used currency in international trade, and of course people in the US use it routinely.

                    So WTF are you saying, because your comment is incoherent. Sigh.

                    1. If you're going to ask questions, then say "fuck you" when the answers are given....There's no point in talking to you.

                      If you can't understand the history of currency, especially at the time when it was given, then you can't understand what's going on...and why the US was under a system where the US dollar was backed by gold in one form or another until 1976....two hundred years after the Declaration of Independence.

                      The trust in the current US currency is based on the faith in the currency that was built up over those 200 years. Faith in fiat currency can be abused however, and in many countries it has been as their currency has devolved into worthlessness.

  8. I wonder if the justices could reference an obviously wrong ruling that was later overturned that they could easily see being reinstated by a future court that interprets the constitution differently.

    Probably not. But Roe was not such an objectively crazy interpretation of constitutional liberty that anyone will be surprised if a left leaning court immediately reinstates it.

    And if the do set this precedent of lowering the bar on precedent itself to the point of overturning cases where they would have voted the other way, then they should not be too surprised if this decision fuels support for court packing, and that court finds no problem clearing that easily hurdled bar to reinstate Roe, overturn Citizens United, and interpret the second amendment to mean that only government formed militias can possess any kind of firearm. I mean if wrongly decided just means not how you would have voted then anything is on the table, right?

    And I’m saying this because I very much do not want this to happen.

    1. " But Roe was not such an objectively crazy interpretation of constitutional liberty that anyone will be surprised if a left leaning court immediately reinstates it."

      Trivially so, in as much as a left leaning court was willing to do it once, so they'd clearly be willing to do it a second time. And whether it was objectively crazy wouldn't enter into the decision.

      Look, a left leaning court would overturn Citizens United, and let the government censor political speech. A left leaning court would overturn Heller and McDonald, and let the government ban guns. A left leaning court wouldn't care about stare decisis, or else you'd never have gotten a whole long list of rulings from left leaning courts.

      There's no point in worrying about what a future left leaning court would do, and preemptively avoid giving it occasions to overturn your rulings, because if you're going to do that, you might as well just abstain from voting, and let the minority on the court make all the decisions directly, rather than anticipate what they'd do in the future.

      1. "Look, a left leaning court would overturn Citizens United, and let the government censor political speech."

        We already let the government censor political speech. Try going into your polling place wearing a "Vote [Candidate]" shirt and holding a sign supporting your favored candidate. We also have limits on individual donations directly to political candidates, despite the decision in Citizens United. Last I checked, I don't see the right leaning majority on the SC arguing that either of those things should be allowed as political speech.

        1. We don't have remotely the sort of political censorship the Democrats were fighting for in the Citizens United case. You had the Assistant AG actually arguing before the Court that they were legally entitled to ban books. Not books being handed out at a polling place, just ban them, period, if they mentioned a candidate.

    2. Starting in 1969, republican presidents would appoint each of the next 11 Justices — and 16 of the 20 overall.

      1969 was 52 years ago. It is unlikely that the other party will have that sort of luck over the next 52 years.

      Court packing will never happen. Nobody will ever want to take the political risk that it could negatively impact their chances in the next election.

      Roe is as dead as a doorknob. The next 7 months will be a living wake for fans, and giddy anticipation for detractors. Dobbs will rule as long or longer as Roe did, easily for the entire lifetime of anyone reading this.

      Stare decisis might be slightly deader after Dobbs, but the minority will be able to nothing other that whine about it. Having it a little more dead will ease the plucking off of other precedents during the next couple of decades.

      1. "Court packing will never happen. Nobody will ever want to take the political risk that it could negatively impact their chances in the next election."

        No, this is overly optimistic, because the first does not follow from the second.

        IF anybody packs the Court, they won't be taking the risk that it would negatively impact their chances in the next election, because nobody is going to pack the Court, and leave it at that.

        You don't pack the Court for yucks. You do it so that you can pass legislation that an unpacked Court would strike down. Such legislation would almost certainly include entrenchment measures to make sure the next election wasn't going to hurt you.

        One of the reasons Democrats talk about Court packing so much is that they don't like the Citizens United ruling preventing them from censoring political speech under the excuse that they're 'just' regulating campaign spending. Another of the reasons is that the Court refused to impose pro-Democrat gerrymandering in the name of banning gerrymandering. Still another is that the Court got in the way of the federal government controlling election laws.

        So their motives for Court packing relate directly to political entrenchment ambitions.

        1. Yea they wish to take away freedoms in the name of equity. Which is not equity at all of course. It's lady justice with her blind fold off and her DNC hat on.

        2. But it would take a lot more than just one (or a few) opportunistic politicians to pull packing off. And on the other side, just one (or a few) could kill it.

          Would you agree that the best opportunity for packing is in the next 36 months? Biden is on the record that he thinks it is a lousy idea, and will probably use the pcscotus report as cover not to do it during the rest of his single term.

          Biden is way too old, creakedy, and coughy to ever pull off a second term. Trump will regain his rightful throne in 2024 and hand pick his successor from the entertainment industry. Either of those two is more likely to codify 9 rather than pack the court. Otherwise all that good fortune during the past 52 years will be for nothing.

          1. Right now packing would require some parliamentary stunts that would be remarkably provocative. Not impossible, or even technically unconstitutional, just hugely provocative.

            The votes required would be a majority of those present, not of the entire body. Schedule a series of surprise votes when most of the opposing party is out of town, and by the time they get back you've expelled them from the legislature and passed a whole bunch of laws they, as private citizens, can't reverse. Then the mobs with torches and pitchforks gather...

            They wouldn't just be burning bridges, they'd be nuking them from orbit, and couldn't risk a remotely unrigged election for years.

            Now, if they'd done a little better in the Senate, so that they could retain a majority even after alienating a few of their members, it would be different. But, no, I don't see them packing the Court any time in the next couple of years. I was just pointing out that nobody would JUST pack the Court, that it's the opening shot in a multi-move finishing combo.

        3. It is completely absurd to worry about Democrats entrenching themselves in power at some vague future time when the Republicans are working hard at entrenching themselves right now.

          Your paranoia is showing again.

  9. Payne v. Tennessee, 501 U.S. 808 (1991), overruled Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989). As Justice Thurgood Marshall cogently observed in dissent, ¨Power, not reason, is the new currency of this Court's decisionmaking. . . . Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.¨ 501 U.S. at 844.

  10. Realistically, of course, this is also exactly what happened between Furman v. Georgia and Gregg v. Georgia, after Douglas, J. retired.

  11. I’m just here to watch all the Christians point at Leviticus in the Old Testament and say “SEE?!”

    1. Oh, and all the Islamaphobes leaning on the Koran. But they’re all the same folks anyway.

    2. Fortunately there's separation of church & state...

  12. From a practical standpoint, I have a question.

    Suppose Justice Alito's POV prevails; a precedent can be overruled at any point when it is wrong.

    Wouldn't that start a long train of cases to challenge old precedents? I am not saying that is bad, per se; but is this a foreseeable outcome?

    1. Well, sure. And there are certainly a lot of old (And not so old; Raich!) precedents that are garbage.

      However, there are really very few Supreme court precedents that the current Court would be at all inclined to overturn, that have substantial constituencies for overturning them. Roe is kind of unique in that regard.

      1. Do you expect the Supreme Court to begin to resemble modern America, or to continue to resemble a Federalist Society holiday gathering?

        I know which course I predict, and the likely timetable, and for that reason I am comfortable with just about any treatment of stare decisis the current Court wishes to follow. If the clingers open a window and start tossing decisions disliked by stale-thinking conservatives, does anyone genuinely expect -- put aside hollow hopes for a miracle of great reversal of the culture war's tide, and focus on the reality-based world -- that window to be closed when the Court no longer features a Catholic, conservative, obsolete complexion?

        1. A reality-based jurisprudence would recognize that pregnancy is a preventable condition; that both he and she have means of prevention; and that that advances have been made in contraceptive effectieness.

          A reality-based jurisprudence would recognize that individuals can adjust to changes in the legal environment and do so regularly.

          A reality-based jurisprudence would recognize that the procreation is a sine-qua-non of generational replacement and survival of the nation, not an undue burden to be shed at will, and that the community as a whole (not just the state qua state) has an interest in propagation.

          A reality-based jurisprudence would recognize that the disparity in abortion utilization culls the next generation on the basis of race.

          1. That sounds mostly like a bunch of old-timey superstition wrapped in a transparent cloak of reality-based pretext.

    2. Can't wait to argue in my future legal briefs that all precedents set by prior cases are inapplicable and that the court the controversy is before is free to decide as they please.

      1. Of course. Clearly a Supreme Court judgment that is contrary to the Constitution is a nullity, just like all other government action that is contrary to the Constitution. Therefore, it must be ignored.

      2. Prof. Eric Segall has been arguing for years that SCOTUS is really not a court, because it isn't required to adhere to precedent. This is just another example.

      3. You should at least make some good policy arguments to justify your fee or contingency cut.

    3. It could. And it should. Which other ones do you think are wrong. It is usually bad to keep doing something that is wrong.

    4. "Wouldn't that start a long train of cases to challenge old precedents? "

      One can hope.

      There was a long list of Warren reversals brought up by Kav. Most are good choices for re-reversal.

      But abortion is sui generis so probably not.

      1. That was a lengthy list that Justice Kavenaugh cited, Bob from Ohio. I found myself nodding in agreement when he noted that the people, not unelected judges, should be the final arbiters on abortion. And that there will be variation in abortion legislation. The oral argument was quite good.

        (PS: Sorry about those Buckeyes getting smashed by the Spartans) 🙂

        1. "Sorry about those Buckeyes getting smashed by the Spartans"

          Don't be. Not a fan, happy they lost.

          PS, Its Wolverines, Spartans is Michigan State.

          1. Sorry bout those Wolverines getting beat by the Spartans, and what a title game coming up, whatever happened to "Leaders", "Legends" and "Coach who punched the Clemson Player"

            Frank "SEC rules"

            1. " Frank "SEC rules" "

              Where do SEC states reside on the list of "states ranked by educational attainment?"

              I have not looked it up, yet I know the answer.

  13. I wonder if all the people on the left extolling the virtues of stare decisis with respect to Roe and Casey concerning abortion, a right established by "emanations" and "penumbras" from the Constitution, believe the more recent cases of McDonald and Heller concerning the right to keep and bear arms, a right explicit in Second Amendment to the Bill of Rights, deserve the same respect as established law.

    In any event, I expect the court to nominally uphold Roe, while permitting greater restrictions (not too different from the holding in Casey). Maybe the justices on the right will cite Breyer to look to laws outside the USA for how other liberal democracies in places like Europe permit restrictions on abortion well before viability.

    1. I expect both sides to have ample opportunity to demonstrate consistency -- or not -- with respect to positions on stare decisis during the next decade or so.

      Maybe even with respect to precisely the same decisions.

    2. What's good for the goose is good for the gander.

      But guns, like the death penalty, really couldn't and shouldn't be written out of the small-c constitution without an amendment to the capital-c Constitution, and on either count that's not going to happen for decades at least.

      1. Speaking of goose and gander ...

        Do men have reproductive rights? With respect to preventing pregnancy, yes, but that's not the issue in the abortion cases.

        The role of the male didn't even come up in Oral Argument.

        The collective sex-based omerta is all-encompassing. Sign of how brainwashed we have become as a society. When it comes to abortion, constitutional rights and automony, it's all about women only.

        The males have been arborted from the discussion.

        1. Come back to me when men can carry a baby to term.

  14. Hey, cut the Dead old White Judges a break! It was the 1890's, Black Peoples weren't important, just like Feti aren't today.

    1. I'm hardly one to argue that you shouldn't comment here if English isn't your first language, but maybe take a few more lessons?

      1. Leck Mich! OK, that's my first language, happy now?

        1. Do you talk to your mother with that mouth?

  15. " Yes, The Supreme Court Has Reversed A Precedent Based Entirely On Its Wrongness "

    And now we could see it occur several times within a period of a relatively few years.

    Use your power as you wish while you can, movement conservatives.

    And try to have the manners to refrain from whimpering quite so much when the modern American (liberal-libertarian) mainstream does the same a few paces down the road, with respect to the filibuster, the size of the Supreme Court, the admission of a few states, the size of the House of Representatives (and with it the Electoral College), the treatment of Supreme Court precedent, gun safety (including the lawfulness of hunting on public lands), special privilege for religion, abortion, penalties for bigoted conduct, regulatory authority, and a number of other issues.

    May the better ideas continue to win in America. (Of course, that's easy for me to say -- I am part of that liberal-libertarian mainstream that has been shaping American progress for so long as any of us has been alive.)

    1. Yea as usual you've got nothing. Why are you here?

      1. Well, my ideas are winning in modern America (outside the most desolate, can't-keep-up backwaters).

        The clingers' ideas are losing.

        Which of us should be questioned in this manner?

        1. In reality the nation is pretty much split 50/50, give or take a few points from election to election. I don't see that changing any time in the near future. If anything each side is becoming increasingly rigid and entrenched.

          As an atheist AnCap I think you're all nuts personally.

          1. First, that 50/50 stuff is right-wing puffery. The clingers have been in the minority, and increasingly so, for some time.

            Second, our electorate improves -- and becomes less hospitable to Republicans and conservatives -- each day, as old conservatives take their stale, ugly thinking to the grave and are replaced by younger, better, more diverse Americans. In particular, our electorate becomes

            less rural

            less religious

            less White

            less bigoted

            less backward

            The right-wingers lord over our left-behind rural and southern stretches, and will continue to do that, but conservatives are a minority in modern America and are being painted into increasingly small, desolate corners of our nation. The culture war is not over but it has been settled.

            1. You are delusional.

              1. You see conservatives diminishing -- let alone stopping, let alone reversing -- the tide of the American culture war, Currentsitguy? Tell us when school prayer is to return. Tell us when school segregation will be back. Tell us when gay marriage will be scuttled, and society will return to treating gays like dirt to flatter superstitious right-wingers. How about contraception? How long do you expect a decision abandoning -- or even substantially leashing -- Roe to survive in modern America?

                Guys like you have been complying with the preferences of your betters throughout your bigoted, backward, reality-disdaining lives. This is going to continue. The liberal-libertarian mainstream will continue to shape our national progress against your wishes and against conservatives' efforts. You get to whine about it -- especially here -- as much as you like, though.

            2. you left out "more gun owning than ever"

        2. interventionism? deficit spending? the fed's monetizing the debt? Federal student loans? Federal healthcare? I could go on...I see nothing the left libertarians have done which has made America a better place...

  16. I've heard it said, but, never put much credibility to it. "When it comes to the Justice System, it isn't about right or wrong, it is about the system.

    After reading this that saying is gaining credibility.

  17. "GENERAL PRELOGAR: It certainly was egregiously wrong on the day that it was handed down, Plessy, but what the Court said in analyzing Plessy to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn't create a badge of inferiority, had been entirely mistaken."

    This statement by Prelogar is as disingenuous as the original Plessy decision. Everybody knew in 1896 that segregation created a badge of inferiority. The majority disingenuously claimed that it didn't, and the dissent (by Harlan) called them on it. Now Prelogar is pretending that Plessy really was a good faith decision, rather than fig leaf to uphold segregation.

  18. You don't "reverse" a precedent, you overrule it.

    That Blackman would make such a boneheaded mistake is yet another reason he's eternally condemned to remain a mediocre intellect, toiling away at a mediocre law school.

    1. I bet you're one of those pedants who says that Grant wasn't buried in Grant's Tomb because his body wasn't put under the surface of the ground.

      1. Of the nearly 200 ranked law schools in America, how many are ranked below South Texas College of Law Houston?

        __ none
        __ one
        __ two
        __ three
        __ four
        __ five or more

        Have fun with that one, everyone!

        1. amazing how much you just revealed about your own inferiority complexity.

          1. You sound like an unaccomplished, envious, half-educated, disaffected right-wing dope, Frank.


      It's fine in the general discourse that includes non-pedants. The media reporting gets the legal lables wrong all the time. ... did you know that in Texas we have original petitions in lieu of complaints? And temporary injunction instead of preliminary ones? Minor semantic details.

  19. Really weak sauce. You could go on and on in regards to reversals. Yes the courts rulings have been reversed. Now lets get back to the merit of the ruling.

    1. "Really weak sauce"

      Was that a stroke of pure happenstance, or did you know that to be the school motto at South Texas School Of Law Houston?

  20. Korematsu was also overruled because it was "wrong the day it was decided . . . ." Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). Indeed, Roberts's full stare decisis analysis is a mere one sentence: "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution." Id. (quotation marks omitted).

    Yes, I'm aware that this is merely dicta because Roberts had just said that "Korematsu has nothing to do with this case." Id. But the stare decisis analysis is still correct. If another case came up with the exact same facts as Korematsu, the length of time since Korematsu was decided should have no bearing (Korematsu is, after all, much older than Roe and Casey), nor should the government's reliance interest on it in crafting its wartime policies. It was wrong on Day 1. Period. That should be enough to end the analysis and overturn it.

    1. Korematsu wrong? Me thinks a Japanese-Amurican in 1942 was probably safer in an Interment Camp than walking the streets of Compton/Oakland (probably safer today also) so how long will we have this Race-ist Roos-e-velt on our Nation's Dimes!!! It's time for a Senator Daniel In-no-way 10 cent piece!

      1. Open wider, Frank!

  21. Logan Valley to Hudgens v. NLRB.

    Metropolitan Broadcasting v. FCC to Adarand

    There are a bunch of these.

    Nonetheless, this isn't a trap. We know the Court can do this. The question is whether it should.

  22. Some of these examples are cases where the Supreme Court caved under pressure and was either in danger of beimg packed or (as in the Civil War era) actually was packed with the number of justices altered for political ends. It could certainly be argued that these situations, while they in fact happpened, are not ones that the court should emulate. The civil war era and thereafter arguably represents a low point of the court’s prestige and ability to get its rulings to stick. Its reversal cases arguably represent evidence in favor of Justice Sotomeyor’s position that reversal of precedents when new justices come on board are symptoms of a powerless court at the mercy of the political branches, a sick court rather than a healthy situation.

    So while the Solicitor General was indeed imprudent to say “never,” simply finding a counterexample doesn’t settle things.

    Finding a piddly gotcha where the other side said something that went a little bit too far rarely even addresses, let alone disproves, the other side’s main case. It may be a lot of fun, it may feel good, it may score debating points, it may make you look cool in your own peanut gallery, you may get “Amens” in the choir. But it’s rarely a real argument that has real weight in serious discussions among grown-ups.

  23. So what was wrong about Roe? It for the first time recognized a fetal right to life (for the last trimester). Before that, the fetus had no rights at all. Are we returning to that era?

    1. eliminating 50 million Blacks?

      1. Your interest in racial matters, Frank Drackman, resembles those of Prof. Volokh and a number of his other fans.

        1. An Amurica with 50 million more Black Peoples, better or worse?(definitely more rhythm) compare and contrast.

          1. Your schtick is falling a little flat. I admire the effort, though.

            1. you prefer fewer Black Peoples, apparently most do, including Black Peoples...

              1. These are your people, Volokh Conspiracy.

                No wonder your deans regret hiring you.

    2. Roe did no such thing. States have the option under Roe to permit abortion up to the moment of birth. The map shows that as of a couple of years ago, several states had no limit at all on the gestational age at which an abortion is permitted. including new Hampshire, Vermont, Colorado, New Mexico, and Alaska.

      What Roe and Casey said was that prior to viability, a state cannot prohibit abortion. After viability, it has the option to do so if it wishes. But as the map shows, not all states have elected to take that option. In addition to the states with no limit, there are also a handful of states with limits lying between viability and birth.

      1. Your map is a bit out of date; In 2019 New York legalized abortion up to the point of birth, and as a practical matter, a bit beyond it. (Since at the same time they abolished all prior safeguards against killing a baby that managed to survive an abortion attempt, along with that baby's legal right to medical care.)

      2. Roe withdrew a woman’s Constitutional liberty protection for the last trimester. In favor of what?

  24. Here's a reversal in a much shorter time frame: What facts changed between Bowers v. Hardwick and Lawrence v. Texas?

    I would argue that the only change was the appointment of justices who felt ashamed of the earlier ruling. Most of the time when a bad ruling stands it's because there weren't any.

    1. Our understanding of dignity and personhood as associated with sexual orientation is not as pinched as it was in the 1980s.

      Yeah, it happened fast, but also yeah it sure did happen!

  25. Surprised none of this August company concerned about the harmful effects on the Climate of any extra million births/year, Babies breathe! and exhale! (an average of 3ml/kg/minute(more when they cry), OK they breathe in Utero too, but the effects aren't as noticeable, like not seeing the Oil/Coal being burned to re-charge an Electric car's battery...
    Hey, I know that squirming object on the Ultrasound might be the next Sandy Koufax (or Charles Manson) but the Climate's more important! More Suction!!!!!

    1. Good satire requires you to know your subject.

      This comment reads like you have has never met a liberal in their life, only the characterization seen in right wing media.

      So rather than satire, it's just a lame strawman.

  26. The better solution is to reject judicial review and allow the States to decide on the constitutionality of federal laws. A super majority of States should be able to overrule any federal law. and any SC decision.

    1. Trusting our rights to the whims of the political branches of state legislators, seems like it could have no downside!

      1. I'm not sure it is entirely worse than the whims of a bare majority of lawyers chosen mostly for their deference to federal claims of power.

        1. Our Republic is set up such that the American People hire experts to do our Constitutional interpretation. They don't just do it via the mob.

          This is not a controversial set-up.

  27. A judicial decision isn't a scientific claim that meets Popper's test of falsifiability, it's a narrative that emerges from a certain set of facts on a certain day, from a certain court. If the proposition of fact or law were absolutely incontrovertible, there would be no need for courts. The court explains its "why," and that "why" becomes the reason that the law stands by. One person might say one thing, another another; the point is that the long arc of justice allows these contrasting and counterintuitive claims to be answered with new dimensions of the "why," or perhaps to convince the others of its own counterintuitive claim.

    The constraint is not that the litmus paper can't be one color one day, and another color on another day; the constraint is that two decisions, which from different tribunals, might be perfectly valid, can't come from the same court without making the court look bad. The reason for this is that it breaks the illusion that the "whys" of the last two centuries emanated form a single, coherent sensibility.

    To translate this into the argot of litigation, you could say that the obligation of noncontradiction is prudential, not jurisdictional.

    Mr. D.

  28. How many people know that the social science cited in Brown and held up by the SG today as "changed circumstances" was total bupkis that has either been overtly disproven or failed to replicate?

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