Roe v. Wade

  • October 17, 2014
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

    Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

    Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

  • October 16, 2014

    by Caroline Cox

    In the National Law Journal’s Legal Times blog, Katelyn Polantz reports on the announcement that ACLU lawyer Vanita Gupta will lead the U.S. Department of Justice’s Civil Rights Division. She is the first South Asian-American to lead the division.

    ACS Board of Directors member Linda Greenhouse examines the exciting opening days of the Supreme Court in The New York Times.

    Garrett Epps considers in The Atlantic how the right to abortion set by Roe v. Wade has eroded over the years.

    In Hamilton and Griffin on Rights, Marci A. Hamilton examines how politicians can protect women and “nullify the effect of the pernicious Hobby Lobby decision.”

    Jonathan Cohn writes in The New Republic that the Supreme Court’s decision to put a hold on portions of a Texas abortion law should make pro-choice advocates optimistic.

  • October 10, 2014

    by Caroline Cox

    In Slate, Jamelle Bouie writes about the Supreme Court’s upcoming review of the Fair Housing Act and what this could mean for the disparate impact standard.

    Adam Liptak reports for The New York Times that the Supreme Court has halted the Wisconsin Voter ID law and overturned a Texas law.

    The Editorial Board of The Washington Post argues that the Senate is at fault for delays in D.C. Superior Court nominations.  

    In The New Republic, Nina Martin profiles Justice Tom Parker of the Alabama Supreme Court who has helped create a roadmap for overturning Roe v. Wade.

    Lyle Denniston of SCOTUSblog provides an overview of the status of same-sex marriage throughout the United States. 

  • September 20, 2013

    by Lara Schwartz

    Every high school history student learns that since Marbury v. Madison, the courts “say what the law is.”  However, when we vote we choose those who choose our judges, which means We the People play a role in saying what the law is. Americans recognize that judges and justices approach the law from different perspectives and that their approaches affect the outcomes of cases we care about. Presidential candidates make promises about what kinds of judges they will appoint for a reason: because it matters. But what do the American people expect from our judiciary?

    We’re often told Americans want a “conservative” Court and that they are sympathetic to originalism. A poll taken after Justice Stevens announced his retirement indicated that more Americans (42 percent) wanted a new justice who would make the Court more conservative than those who wanted to see the Court become more liberal (27 percent). Some surveys hint that Americans’ views on constitutional interpretation are sharply divided: a Pew Survey found that half of Americans (50 percent) say the Court’s rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45 percent) say rulings should be based on its understanding of what the Constitution meant as originally written. Yet although voters might find the term “conservative” and the idea of “as originally written” appealing in principle, they don’t agree with what the conservative justices do in practice.

    Americans overwhelmingly support upholding Roe v. Wade, which has become conservative shorthand for a liberal, activist Court.  Even Roe’s supporters don’t tend to call it conservative or claim it exemplifies originalist constitutional interpretation, yet only 29 percent of Americans believe that Roe should be overturned, which is fewer than the 43 percent who believe abortion is “morally wrong.”    

    Most Americans also agree with the Court’s ruling in U.S. v. Windsor, which struck down the section of the so-called Defense of Marriage Act that denied same-sex couples federal benefits. This places them at odds with the Court’s conservative bloc. By contrast, 33 percent approve of the Court’s decision in Shelby County v. Holder, which struck down part of the Voting Rights Act, compared with 51 percent who disapprove. 

  • June 13, 2013
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

    The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

    Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula.  Section 5 might remain "on the books" but it would be essentially a dead-letter.