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Old June 2, 2009, 09:21 PM   #1
maestro pistolero
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Supreme Court, overruling precedent

Under what circumstances has the Supreme court overturned it's own long-standing precedent in the past?

Since we know that the weight of precedent is to be carefully protected in jurisprudence, what sort of criteria or facts would a seasoned justice need to see to justify overturning old, established case law?

Would the cases which are obstacles to incorporation of the 2nd exceed that threshold?
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Old June 2, 2009, 09:36 PM   #2
Tennessee Gentleman
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Well, let's see: Overturned Plessey vs. Ferguson, separate but equal with Brown vs. Topeka Board of Education Hardwicke vs Georgia
was overturned involving sodomy laws. Those are the two I know the most about right now.
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Old June 2, 2009, 11:02 PM   #3
KChen986
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Most often, the Supreme Court will make momentous overrulings when society/history reflects a large change.

I.e. IIRC Erie v. Thompkins came on the heels of great depression (tons of new doctrines gained acceptance at the time.)

As Tennessee Gentleman indicated, the other rulings, Brown & Plessy IIRC came at the time of great social unrest.

Barring another idiot shooting up some public place, I would not worry about overruling gun laws too much now. Noise-IMHO-GEM
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Old June 3, 2009, 12:14 PM   #4
Thermodyne
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Usually when the court reverses itself, it is to restore a civil right that was legislated away back in the days of WASP rule. I don't see this court revisiting the 2nd amendment unless some one takes on a state with unconstitutional laws, such as Maryland calling minor misdemeanors felonies for the purpose of gun laws. That is a civil rights issue now in such that a misdemeanor does not take away your lawful personal rights.

Also if this administration signs the UN firearms ban and the Hill ratifies it, then you'll see a suit filed in Richmond's Rocket Docket so as to get before the court as fast as is possible. Before the balance of the court can be tilted by new blood.
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Old June 5, 2009, 02:13 PM   #5
SIGSHR
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The Court reverses itself when there is enough of a change of personnel
on it and the clerks-who do most of the writing of the opinions-persuade the
justices to accept their viewpoints. Think of Bowers vs. Hardwick then Lawrence vs texas.
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Old June 5, 2009, 05:17 PM   #6
maestro pistolero
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Interesting opinions. I had in mind cases that must be overturned in order to restore the 14th to it's originally intended scope.
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Old June 5, 2009, 07:15 PM   #7
gc70
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Quote:
I had in mind cases that must be overturned in order to restore the 14th to it's originally intended scope.
Slaughterhouse put a stake through the heart of the "privileges or immunities" clause, which was probably the 14th Amendment's code phrase for the Bill of Rights. My layman's guess is that Slaughterhouse will not be reversed because the legislative record suggests that "privileges or immunities" is at least as broad as the Bill of Rights, and probably much broader. Reversing Slaughterhouse might throw open a very wide door to an undefined number of possible "new" Constitutional rights, which is a form of uncertainly that SCOTUS traditionally does not pursue.

SCOTUS does not need to reverse Slaughterhouse because the desired end (applying the Bill of Rights to the states) has largely been achieved through due process incorporation. SCOTUS can tidy up any remaining loose ends through further due process incorporation without opening a possible Pandora's box by reversing Slaughterhouse.
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Old June 7, 2009, 06:25 AM   #8
publius42
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Reading the Slaughterhouse opinion, I'm wondering: do we really want that reversed?

Some excerpts:

Quote:
The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln. [n6] In that case, the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port in that of New York City to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive right of Congress to regulate commerce. And it cannot be denied that such a statute operated at least indirectly upon the commercial intercourse between the citizens of the United States and of foreign countries. But notwithstanding this, it was held to be an exercise of the police power properly within the control of the State, and unaffected by the clause of the Constitution which conferred on Congress the right to regulate commerce. [p64]

To the same purpose are the recent cases of the The License Tax, [n7] and United States v. De Witt. [n8] In the latter case, an act of Congress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at less than a prescribed temperature, was held to be void because, as a police regulation, the power to make such a law belonged to the States, and did not belong to Congress.
Wow is all I can say about that view of the commerce power.

Quote:
But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?
Ummm.... good question, that!
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Old June 7, 2009, 08:58 AM   #9
Bartholomew Roberts
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Quote:
Reversing Slaughterhouse might throw open a very wide door to an undefined number of possible "new" Constitutional rights, which is a form of uncertainly that SCOTUS traditionally does not pursue.
However, opening the door to a reversal of Slaughterhouse might bring over a few Justices who favor a broad, expansive interpretation of Constitutional rights and consider incorporating the Second a small price to pay for being able to use the privileges and immunities clause against the States to apply those rights at some later date. Speaking from a purely strategic viewpoint...

Quote:
Wow is all I can say about that view of the commerce power.
Yes, that view of the commerce power is deader than an armadillo in the middle of I-35 though...
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Old June 7, 2009, 11:55 AM   #10
gc70
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Quote:
However, opening the door to a reversal of Slaughterhouse might bring over a few Justices who favor a broad, expansive interpretation of Constitutional rights and consider incorporating the Second a small price to pay for being able to use the privileges and immunities clause against the States to apply those rights at some later date.
A path to strong Constitutional protection for a wide array of unenumerated rights might be very appealing to liberal justices. Since the precedents supporting the 1st, 4th and 5th Amendments are so well defined, the 2nd is the only game in town for a clean reassessment of Slaughterhouse. The question is how many justices might be open to such a reassessment. Surprisingly, a "wise Latina woman" and a "wise Jewish woman" might be a couple of the best bets to join the existing voice of a "wise black man" calling for a reassessment of the privileges and immunities clause.
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