"How Many Votes To Overrule The Slaughterhouse Cases?"

Here is an excerpt from Orin Kerr's post at the Volokh blog:

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect. That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges (more on that below). I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution.

You can read the whole post here.

Philip K. Dick Story On reserve

I have placed copies of Philip K. Dick's short story, The Pre-Persons, on reserve in the library. I know some of you are interested in this sci-fi (law and literature) take on the abortion issue, so it is there if you are interested.

I am not assigning it. It is just there for those who would like to read a fictional take on the abortion issue.

Nebraska Ultrasound Bill

Here is the Nebraska Statute.

Here is a news report:

Nebraska will soon require those performing abortions to display ultrasound images of fetuses in a way that the women can easily view them.

Lawmakers passed the bill (LB675) Friday afternoon on a 40-5 vote, and Gov. Dave Heineman signed it a short time later. Four senators did not vote.

Supporters of the bill introduced by Sen. Tony Fulton of Lincoln argued it would give women more information to consider before making decisions.

Others criticized the bill, saying it's government forcing itself into a private procedure that should be between a doctor and a patient.

But there was no debate Friday before final approval, as is the Legislature's practice.

The bill also would require the state to compile a list of clinics that offer free ultrasounds to women.

Nebraska will become the 14th state to require that abortion providers offer patients chances to see ultrasound images. The bill will take effect Aug. 29.

Mary Spaulding Balch with the National Right to Life Committee said Nebraska's proposed law is worded more strongly than that of most other states with similar measures. She says Nebraska's law requires the ultrasound image to be displayed instead of just requiring that the woman be asked if she wants to see the image, as the other states do.

"We think it's an important distinction, because we feel that when women are in a crisis -- such as trying to decide whether or not they will have an abortion or not have the abortion -- they're probably just thinking that they don't want to be pregnant, and they're not really asking too many questions," she said.

But Bobbie Kierstead, a spokeswoman for Planned Parenthood of Nebraska and Council Bluffs (Iowa), said she doesn't believe the bill will change her organization's longtime practice of offering women the choice of whether to view an ultrasound.

"It should be their choice," Kierstead said.

Planned Parenthood had objected to this measure as an improper intrusion into the practice of medicine.

"This is basically telling doctors what information and what care is best for their patients," Kierstead said.

The Nebraska bill was based on a model proposal the National Right to Life group offered to lawmakers.

Spaulding Balch said some women have said that seeing the ultrasound images influenced them against getting abortions. But there is no hard evidence or statistics, because states don't track how often women request to see the images.

Racial Classifications and Strict Scrutiny

Racial classifications are considered highly suspect, because race has often been employed by the law for invidious purposes. See, e.g., Plessy.

But suppose the pupose is not invidious. Here are two hypos once posed by Prof. Brest:

1. He posed the case of a public school principal who seats blacks on one side of the stage at graduation and whites on the other side for aesthetic reasons.

2. He also posed the case of a prison warden who temporarily separates black and white prisoners in order to quell an outbreak of racially motivated violence. Cf. Johnson v. California, casebook p. 789.

Apply strict scrutiny in each of these cases.

Montana Enacts a 9th & 10th Amendment Law

Travis Kavulla has an interesting article in National Review which he summarizes at his blog:

Gun Nuts

October 16th, 2009 by Travis Kavulla

Well, I have managed to get some work done this week, mostly in between fulminating about City Government…

The new National Review is out and includes my piece about the unprecedented Montana Firearms Freedom Act, our state’s rejection of federal regulation for arms made and staying within the state.

Gun Nuts
Montana sends a shot across the bow of federal regulation

Travis Kavulla

Great Falls, Mont.
Long has Montana been enthusiastic on the subject of guns, but the Montana Firearms Freedom Act takes the cake.

Passed this spring by the state legislature, a group of folks who meet for 90 days every other year, the law declares that any weapon or round of ammunition made in Montana and remaining within state borders “is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.” This bold declaration of independence became law October 1, though even before then the Bureau of Alcohol, Tobacco, and Firearms had sent out a memorandum to gun dealers, the summary of which was: Don’t even think about it. A lawsuit is pending. [...]

The piece includes a first-person description of the Great Falls Gun & Antique Show and also an interview with freshman Rep. Wendy Warburton, a Republican who took a seat in Havre and has a lot of conservative verve. I am sure many Beltway readers will be stunned to learn there is a Great Falls other than the one in Virginia.

Does A's Right of Choice

trump B's right of conscience? Here is an excerpt from a post from the ReligionClause blog:

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.)