Jonathan Turley at USA today has an interesting look at the Supreme Court possibilities:
The replacement of any of these justices could produce the most transformative doctrinal changes in the court’s history. Consider just a few areas resting on the bubble:
•Abortion. These three justices represent half of current votes supporting Roe v. Wade. A loss of one of the three could flip a 5-4 decision protecting “partial-birth” abortions. If President Bush replaced just two, he could deliver the holy grail of conservative politics for at least four decades: the overturning of Roe.
•Affirmative action. Change one of the three and you change the result in the 2003 Grutter decision, in which the court upheld the use of affirmative action programs in university admissions.
•Campaign financing and reform. Replace one of the three and you reverse the court’s 5-4 ruling in 2003 upholding federal restrictions on campaign financing — wiping away years of hard-fought legislative reforms.
•Church and state. A loss of any of the three would likely shift the balance in religion cases, allowing greater entanglement of church and state.
•Death penalty. The court’s recent 5-4 ruling barring the execution of juveniles could change with the loss of either Stevens or Ginsburg.
•Disability. One change could flip a series of 5-4 decisions on disabilities law. These include a decision last year allowing the disabled to sue states for access to courthouses and this year’s ruling (with Stevens and Ginsburg in the majority) extending the disability act to foreign cruise liners.
•Discrimination. A loss of any of three could reverse the result in a number of discrimination cases, including recent opinions supporting the broad application of Title IX, the federal law imposing gender equity in school sports.
•Environmental laws. These three justices are part of a slim five-vote majority on various environmental rulings, such as the recent opinion upholding the right of the Environmental Protection Agency to stop states from issuing construction permits below compliance standards.
•Federal sentencing. A loss of either Stevens or Ginsburg could flip the result in the court’s recent decision striking down portions of the federal sentencing guidelines — a historic decision giving judges greater discretion in criminal cases. Likewise, such a change could undo the landmark 2000 ruling in Apprendi, in which the court barred judges from increasing sentences without factual findings from a jury.
•Gay rights. A loss of two of the three justices would lose the majority in the 2003 Lawrence decision that struck down anti-sodomy laws as well as some related decisions.
•States’ rights and federalism. Rehnquist’s “Federalism Revolution” struck down various federal statutes as intrusive of states’ rights, such as the Violence Against Women Act. One or two new justices could restart the federalism revolution with a vengeance.
This is why we voted!
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