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| Issues: The United States Supreme Court
| Examining today's biggest issues from a broader perspective. More info here.
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What's going on with the Supreme Court?
- Change is definitely coming. There have been no new justices since 1994 (when Breyer was appointed) and Stevens, a liberal voice who is now more than 80 years old and has served for more than 25 years, will probably retire sometime in the next four years (Rehnquist has been on the court even longer but is four years younger and surely wants to end his time with some other major decision than Bush v Gore). Thus, President George W. Bush will get to appoint at least one justice and will undoubtedly use the appointment to solidify conservative advances of recent years.
- Federal powers are being scrutinized and limited by a now-solid conservative revolution which emphasizes that some domains of power are reserved to the states alone and that there are some things the federal government cannot do. There is a 5-4 majority in most of these cases and this will probably expand to a 6-3 majority within the next four years. More here.
- At the same time, there is a fairly consistent 6-3 majority for using federal rights of due process and equal protection to limit state and local powers. However, without Stevens, the votes could go back and forth more often. Note the 1996 BMW v Gore case where Ginsburg sides with the coalition of Scalia, Rehnquist and Thomas (by the way, the Gore here is not Al Gore). More here.
- Balance of powers cases re-affirms that the Supreme Court is above all comers. Congress cannot overrule a Supreme Court decision, though it does have powers to limit the kinds of cases that the Supreme Court and other federal courts can decide. And though the Supreme Court generally defer to federal agencies' determinations, it will still strike down agencies like the Federal Drug Administration on occasion. And then, of course, there was Bush v Gore in December 2000. More here.
- Affirmative action in school admissions will become much harder to maintain, perhaps impossible. The 1978 Bakke case was never all that strong. Since then, a 5-4 majority has emerged for applying strict scrutiny to affirmative action in contracting case and it seems likely to apply such reasoning in an appropriate case. If the US Supreme Court ever finds that having a "diverse student body" does not justify affirmative action in education, then such affirmative-action programs will be dead.
- Abortion rights at the federal level are up in the air. The 5-4 majority in the 1992 Casey case upholding the core Roe v Wade rights may have widened somewhat safely to 6-3 with Clinton appointees Ginsburg and Breyer, who are presumably in favor of maintaining abortion rights. Note: even if Roe v Wade is overturned and federal abortion rights eliminated, abortion rights can still be maintained by each individual state (in fact, Ginsburg has criticized the Roe v Wade decision for pre-empting a widespread movement to guarantee abortion rights in most states). More here.
- Swing votes generally remain Kennedy and O'Connor. Scalia, Thomas and Rehnquist are a conservative coalition concerned with a limited role for the federal government and federal rights, with Rehnquist veering off notably only for upholding Miranda from a nearly-forgotten decades-old Congressional attack. Breyer, Souter, Kennedy and Ginsburg form a generally liberal block with Ginsburg veering off notably to oppose the extension of federal due process rights into state-court judgments in the 1996 BMW v Gore case (once again, note that the Gore here is not Al Gore).
The current Supreme Court bench
- William Rehnquist. Born 1924, appointed by Nixon in 1972 to replace John Harlan, made chief justice in 1986 to replace Warren Burger. Conservative.
- Stephen Breyer. Born 1938, appointed by Clinton in 1994 to replace Harry Blackmun. Liberal.
- Ruth Bader Ginsburg. Born 1933, appointed by Clinton in 1993 to replace Byron White. Liberal.
- Anthony Kennedy. Born 1936, appointed by Reagan in 1986 to replace Lewis Powell in the wake of the Bork confirmation controversy. Swing vote, generally conservative.
- Sandra Day O'Connor. Born 1930, appointed by Reagan in 1981 to replace Potter Stewart. Swing vote, generally conservative.
- Antonin Scalia. Born 1936, appointed by Reagan in 1986 to fill Rehnquist's vacated spot upon elevation to chief justice. Conservative.
- David Souter. Born 1939, appointed by Bush in 1990 to replace William Brennan. Swing vote, generally liberal.
- John Paul Stevens. Born 1920, appointed by Ford in 1975 to replace William Douglas. Liberal.
- Clarence Thomas. Born 1948, appointed by Bush in 1992 to replace Thurgood Marshall. Conservative.
A table showing how the Supreme Court has changed from 1974-2001
Click here to open a printer-friendly version of this table in a new window.
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| Chief Justice
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| | | Burger | Powell | Blackmun | Brennan | Douglas | Marshall | White | Rehnquist | Stewart |
| | | (1969-86) | (1972-87) | (1970-94) | (1956-90) | (1939-75) | (1967-91) | (1962-93) | (1972-*) | (1958-81) |
| 74 | Ford |
| 75 | | | | | | Stevens |
| 76
| | 77 | Carter
| | 78
| | 79
| | 80
| | 81 | Reagan | | | | | | | | | O'Connor |
| 82
| | 83
| | 84
| | 85 | Reagan
| | 86 | | Rehnquist | | | | | | | Scalia |
| 87
| | 88 | | | Kennedy |
| 89 | Bush
| | 90 | | | | | Souter |
| 91
| | 92 | | | | | | | Thomas |
| 93 | Clinton | | | | | | | Ginsburg |
| 94 | | | | Breyer |
| 95
| | 96
| | 97 | Clinton
| | 98
| | 99
| | 00
| | 01 | Bush | Rehnquist | Kennedy | Breyer | Souter | Stevens | Thomas | Ginsburg | Scalia | O'Connor |
| | | (1972-now) | (1988-now) | (1994-now) | (1990-now) | (1975-now) | (1992-now) | (1993-now) | (1986-now) | (1981-now) |
Nominating a justice to the Supreme Court (last updated May 2001)
There are nine justices on the Supreme Court (including the chief justice), and whenever there is a vacancy, the President nominates a new justice; this power is checked by the Senate, which has the power to confirm or reject a nominee (the Constitution says that an appointment is not effective unless the President obtains the "Advise and Consent of the Senate," Article II, Section 2, Clause 2).
Battles over Supreme Court nominations began long before the infamous Bork nomination of 1987. According to legal scholar Henry Abraham, the Senate has rejected 30 of the 144 nominees formally sent for confirmation and it rejected 1 out of 3 nominees in the 19th century.
In the 20th century, five sets of nominations stand out as particularly vehement battlegrounds between the President and the Senate.
The first controversial nomination of the 20th century was President Wilson's appointment of Louis Brandeis, who is widely considered one of the greatest justices in history. The Bork battle obviously looms larger in modern readers' memory, but legal scholar Henry Abraham calls the Brandeis confirmation "battle" "the most bitter and most intensely fought in the history of the Court." Brandeis, a prominent Boston lawyer who was aligned with liberal social causes, was hated for his political views and also for being Jew. Debates over his nomination went on for months, but the Senate ultimately confirmed his nomination 47-22 (with 27 senators abstaining).
The second controversial appointment involved two failed nominations before President Nixon finally nominated Harry Blackmun. Justice Abe Fortas had resigned in May 1969 over concerns of his relationship with a convicted financier, and Nixon went through three nominations before Blackmun was confirmed. The first was Clement Haynsworth Jr., who had questionable financial improprieties similar to Fortas's and was ultimately rejected 55:45; the second was G. Harold Carswell, who was widely considered unqualified (Senator Roman Hruska, in Carswell's defense, made the famous statement: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there.") and was rejected 51:45. Blackmun, anticlimactically, was confirmed 94-0.
William Rehnquist, now the Chief Justice, gave rise to controversy first when he was nominated by Nixon to the Court in 1971 and then when he was nominated by Reagan to be Chief Justice in 1986. He was accused of being too conservative but ultimately was confirmed both times; the vote in favor of his becoming Chief Justice was 65-33.
Judge Robert Bork's unsuccessful nomination is popularly seen as a turning point for the confirmation process; the Brandeis and Rehnquist confirmation battles were just as political but differed in ending happily for the nominee. Bork was accused of being too conservative (for example, he had criticized the Roe v Wade decision as an example of judicial activism, though he said in confirmation hearings that he respected precedent and would not commit to voting to overturn or uphold Roe) and he was rejected 58-42. Reagan then nominated Donald Ginsburg, who withdrew after his regular use of marijuana became public, and finally nominated Anthony Kennedy, who was confirmed without problem, 97-0.
And finally there is the nomination of Clarence Thomas in 1992. Thomas, a leading black conservative, was initially attacked for his politics, his support for the concept of natural law, and his general qualifications. Then, just days before the eve of the Senate vote on his nomination, National Public Radio reported that a former co-worker, Anita Hill, was saying that Thomas had sexually harassed her. The ensuing controversy resulted in a second round of hearings and attacks that Thomas likened to a "high-tech lynching of an uppity black man." Ultimately, Thomas was confirmed 52-48 in the closest successful vote in the 20th century.
Other nominations in the 1990s went far more smoothly. David Souter, a Bush nominee considered a "stealth candidate" for his lack of substantial record, was easily confirmed in 1990, 90-9. Clinton's two nominees, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994, were also amicable processes; Ginsburg was confirmed 96-3 and Breyer 87-9.
As of 2001, it has been seven years since a president nominated someone to the Supreme Court. Given the age of some justices and news reports, George W. Bush will probably have the opportunity to nominate at least one during the current term. Bush has said that he disapproves of "activist" judges and is more inclined towards strict-constructionist judges along the lines of Scalia and Thomas.
Second, on March 22, 2001, he announced he was ending a longtime tradition of allowing a special committee of the American Bar Association to screen candidates for lower federal court judgeships before nominated. Bush said that it was improper to give the ABA advance notice that other organizations did not receive; the move has been criticized as payback for the ABA's decision to oppose the Bork nomination. The ABA does not play such a role in Supreme Court nominations, but Bush's move sends a signal about his receptiveness to such outside input.
Sources: Henry J. Abraham, Justices, Presidents and Senators (1999, 4th edition). Susan Low Bloch and Thomas G. Krattenmaker, Supreme Court Politics: The Institution and its Procedures (1994).
Federalism: state powers and domains trumping federal powers
Congress cannot use its Commerce Power to regulate areas which have no connection to interstate commerce; in this case, Congress cannot enact the Gun-Free School Zones Act which would criminalize the possession of a gun near a local school unless there is some stated link to interstate commerce. United States v Lopez, 514 US 549 (1995). 5-4. Rehnquist, Scalia, Kennedy, O'Connor, Thomas in majority. Breyer, Stevens, Souter, Ginsburg in dissent.
- Rehnquist (with Scalia and Thomas): Congress can use its broad Commerce powers only to regulate activities that are involved in interstate commerce (as a jurisdictional requirement) or that have a "substantial relation" to interstate commerce (as a substantive requirement). Using aggregation alone to find such a relation is not sufficient.
- Kennedy and O'Connor: federal government cannot intrude on state-specific areas such as education and impose a mandate on them.
- Thomas: Skeptical of substantial effects test, but waiting for more appropriate case for reconsideration.
- Breyer (with Stevens, Souter, Ginsburg): Courts should not ask whether a federal law under the Commerce power has a substantial relation to interstate commerce, but only whether Congress had a rational basis for thinking it did.
- This case was used with the same coalitions as in Lopez to strike down the Violence Against Women Act. United States v Morrison (2000).
Federalism: State vs federal
Chicago's Gang Congregation Ordinance prohibiting "criminal street gang members" from loitering in public place violates federal due process rights because it is too vague on its face and arbitrarily restricts personal liberties. City of Chicago v Morales (2000). 6-3. Stevens, with O'Connor, Kennedy, Souter, Ginsburg, and Breyer for majority. Thomas, with Rehnquist and Scalia in dissent.
A voter-approved amendment to Colorado's constitution that would prohibit all state/local government action to protect homosexuals from discrimination violates the U.S. Constitution's Equal Protection Clause and is invalidated. Romer v Evans (1996). 6-3. Kennedy, with O'Connor, Stevens, Souter, Ginsburg and Breyer for majority. Rehnquist, Scalia and Thomas in dissent.
- Kennedy: "First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exception and ... invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
- Scalia: "The constitutional amendment before us here is not the manifestation of a 'bare [desire] to harm' homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."
Federal due process rights prevent a state court from imposing excessive damages in a civil case. BMW v Gore (1996). 5-4. Stevens, O'Connor, Kennedy, Souter, Breyer for majority. Rehnquist, Scalia, Thomas, and Ginsburg for minority position that this is a state domain alone, not subject to federal scrutiny.
The abortion rights first upheld in Roe v. Wade as part of personal-liberty rights are upheld as a matter of stare decisis. Abortion thus is not a matter left solely for the individual states to legislate upon. Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992). 5-4 for upholding core Roe v Wade rights.
- The abortion rights are upheld by O'Connor, Kennedy, Souter, Stevens, and Blackmun, with some disagreement on specific state provisions such as a required waiting period. Four dissenting justices (Rehnquist, White, Scalia and Thomas) believe that Roe was wrongly decided (right to an abortion is not "fundamental" because it has no textual support in Constitution and was regulated historically) and want to overrule it.
- Current state of abortion rights? Blackmun notes in his opinion that abortion rights are protected but that he "fear[s] for the darkness as four Justices anxiously await the single vote necessary to extinguish the [light]." Since 1992, one of those four Justices (White) and Blackmun himself have been replaced by Clinton nominees, so the pro-abortion rights contingent is presumably now 6-3. Presumably, two justices will need to be replaced before the core Roe rights are again up for possible overturning. Then again, Ginsburg could surprise by deciding that this is a state matter that the federal courts wrongly intervened in.
- What would happen if the U.S. Supreme Court did indeed overturn Roe? Abortion would not necessarily be criminalized. Each individual state would decide for itself whether it would allow abortion and what kind of regulations it would impose.
- State-imposed regulations of abortion are permissible as long as they do not impose an "undue burden" on a woman's right to an abortion. Even though five justices concurred on upholding abortion rights, they disagreed some on the specific provisions in the Pennsylvania law being considered. Three justices (O'Conor, Kennedy and Souter) reject the trimester framework and replace it with one based on viability; state regulation can make getting abortion more difficult as long as the regulation does not impose an "undue burden" on exercising the right. Accordingly, an informed consent requirement and waiting period are not undue burdens and are not unconstitutional (spousal notification requirement, however, is an undue burden and is unconstitutional).
Balance of federal powers
Congress cannot use the 14th Amendment to pass a law (the Religious Freedom Restoration Act of 1993) which makes it more difficult for the government to apply general, religious-neutral laws in a way that might make a person's exercise of religion more difficult. City of Boerne v Flores (1997). 6-3. Kennedy for Court, with Rehnuist, Stevens, Thomas, and Ginsburg. O'Connor, Souter, and Breyer in dissent.
- The RFRA was a legislative response to a Supreme Court decision that upheld a state law prohibiting people who had been fired for drug use from getting unemployment benefits. Native American Church members said this discriminated against their free exercise of religion, which included the use of peyote. In response, Congress passed the RFRA to exempt religions and religious activities from many neutral laws.
The Miranda requirements that a defendant is read a set of warnings for any subsequent statements in an interrogation to be admissible in court against him is a matter of constitutional law and cannot be superseded by a statute passed by Congress. Dickerson v United States (2000). Rehnquist writes for 7-2 Court, with Stevens, O'Connor, Kennedy, Souter, Ginsburg, and Breyer joining. Scalia and Thomas dissent.
- Rehnquist: Congress cannot supersede court decisions interpreting and analyzing the Constitution. The Miranda decision which requires the reading of warnings to a criminal defendant in order for any statements in an interrogation to be admissible in court is a constitutional rule and thus cannot be superseded by a federal statute.
- Scalia: The Miranda decision was overreaching and was never meant to be a permanent part of constitutional law. The majority of the court errs in keeping it as such.
- What would have happened if the Supreme Court had overruled Miranda? As far as interrogations go, not much. Years before Miranda, the Court found that confessions must be voluntary in order to be admitted; the Miranda decision in some ways simply set out a presumption that any statement in an interrogation is voluntary if made after a suspect hears and understands the warnings. The main effect of Miranda and other court-imposed mandates in the 1960s was to force police culture to become more professional and regulated with new rules and requirements. Police have adapted to those changes and studies have shown that the number of confessions has, in fact, stayed the same or even increased since Miranda.
Although federal agencies are generally allowed deference in regulating unclear areas, the Federal Drug Administration overstepped its powers as a federal agency when it asserted justification to regulate tobacco products (based on the assertion that nicotine is a drug). Food and Drug Administration v Brown & Williamson Tobacco Corp (2000). 5-4. O'Connor for Court, with Rehnquist, Scalia, Kennedy and Thomas. Breyer in dissent, with Stevens, Souter and Ginsburg.
- If the matter has not been directly addressed by Congress, courts generally defer to agency determinations under the Chevron doctrine. The majority looks beyond language of statute and at Congress's actions to find that it has effectively precluded tobacco regulation from the FDA's scope.
- Somewhat ironic in that general theories of interpretation are reversed. Breyer looks primarily at language and purpose of the enabling statute (traditionally a Scalia approach), whereas O'Connor looks at the all-around schema of federal legislation.
Equal protection (affirmative action, employment discrimination)
Whether motivated by benign or invidious reasons, all federal racial classifications must serve a compelling government interest and must be narrowly tailored to further that interest. Courts should use "strict scrutiny" when it analyzes whether federal law or programs meet these requirements. Adarand Constructors v Pena (1995). O'Connor for court. Rehnquist, Scalia, Thomas, Kennedy concur. Souter, Ginsburg, Breyer, and Stevens dissent.
- Overrules Metro Broadcasting v FCC, 497 US 547 (1990) that courts should apply "intermediate scrutiny" to benign racial classifications. Metro Broadcasting was a 5-4 decision; by 1995, however, Marshall (in majority in Metro Broadcasting) had been replaced by Thomas (in majority in Adarand).
- Scalia, concurring in part and in judgment: "In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction."
- Could have implications for affirmative action in education. By implying that diversity in government contracting is not a compelling interest, the Court could be seen as setting up grounds for undermining the main and possibly only justification for affirmative action in education. The Fifth Circuit Court of Appeals used this and other cases to hold that diversity was not a compelling interest, thus forcing the Texas state university system to eliminate affirmative action from its admissions policies.
A medical school's admissions program putting blacks into a special program violates the U.S. Constitution and is unlawful, though the reasoning is unclear. Regents of Univ. of California v Bakke, 438 US 265 (1978). Powell writes for the Court, but there is no consensus.
- Powell writing for himself: The interest must be "both constitutionally permissible and substantial," and the use must be "necessary" to accomplish purpose or safeguard interest. Eliminating discrimination and attaining a diverse student body are permissible and substantial interests. Remedying past discrimination is only when it is supported by governmental findings. A program focused solely on ethnic diversity is not an appropriate means of using racial classifications.
- How strong is Bakke? The four justices (Stevens, Rehnquist, Burger, Stewart) who concurred in the judgment with Powell did not even view the case as reaching the larger issue of whether such admissions programs were legal. The four justices who disagreed with the judgment (Brennan, White, Marshall and Blackmun) saw the program as constitutional. A 5-4 majority agreed only that Bakke was entitled to admission. Since then, the Court has used Bakke to apply strict scrutiny to benign racial classifications. What is now the battleground is what constitutes an acceptable interest and appropriate means. In 1996, the Fifth Circuit Court of Appeals held that attaining a diverse student body was NOT an appropriate government interest and thus invalidated an affirmative-action program in Texas, Hopwood v Texas, 78 F.3d 932 (1996).
Employment discrimination cases are becoming harder for plaintiffs to prove. A jury considering an employment-discrimination case is not obligated to find for the plaintiff, even if the plaintiff has proven that the employer lied about the reasons for a firing or for disparate treatment. St. Mary's Honor Center v Hicks, 509 US 502 (1993). 5-4. Rehnquist, Scalia, Thomas, O'Connor, and Kennedy for majority. Souter, White, Blackmun, and Stevens dissenting.
- The previous framework made it easier for plaintiffs to win deciding disparate-treatment cases. Cases followed this pattern: 1) plaintiff shows some evidence of discrimination in how he or she was treated differently from similarly-situated employees, 2) employer offers a reason explaining the disparate treatment, 3) plaintiff either proves discrimination or (since such concrete evidence is hard to come by) proves that the employer's explanation is a pretext. Once the plaintiff proved pretext, the finder of fact was then obligated to find for the plaintiff. Hicks reduces the three-part framework to preliminary steps before the jury can consider the original and ultimate question of discrimination.
- Scalia: If the plaintiff makes a PF case and the defendant does articulate a reason, then the jury decides the ultimate issue of whether there was intentional discrimination. No presumption even if the jury believes the articulated reason is pretext, although the jury can use that in determining the ultimate issue. A jury's disbelief in an offered nondiscriminatory reason should not lead to the assumption that the employer has lied
- Souter for the dissent: presumption is necessary to focus the issues and get to a "new level of specificity" and to make the employer stand by its choice of battleground as to the nondiscriminatory reason articulated.
A voter-approved amendment to Colorado's constitution that would prohibit all state/local government action to protect homosexuals from discrimination violates the U.S. Constitution's Equal Protection Clause and is invalidated. Romer v Evans (1996). Kennedy for Court, with Breyer, Souter, Stevens, Ginsburg and O'Connor. Rehnquist, Scalia and Thomas dissent.
- Kennedy: "First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exception and ... invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
- Scalia: "The constitutional amendment before us here is not the manifestation of a 'bare [desire] to harm' homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."
Criminal constitutional law
The Miranda requirements that a defendant is read a set of warnings for any subsequent statements in an interrogation to be admissible in court against him is a matter of constitutional law and cannot be superseded by a statute passed by Congress. Dickerson v United States (2000). Rehnquist writes for 7-2 Court, with Stevens, O'Connor, Kennedy, Souter, Ginsburg, and Breyer joining. Scalia and Thomas dissent.
- Rehnquist: Congress cannot supersede court decisions interpreting and analyzing the Constitution. The Miranda decision which requires the reading of warnings to a criminal defendant in order for any statements in an interrogation to be admissible in court is a constitutional rule and thus cannot be superseded by a federal statute.
- Scalia: The Miranda decision was overreaching and was never meant to be a permanent part of constitutional law. The majority of the court errs in keeping it as such.
- What would have happened if the Supreme Court had overruled Miranda? As far as interrogations go, not much. Years before Miranda, the Court found that confessions must be voluntary in order to be admitted; the Miranda decision in some ways simply set out a presumption that any statement in an interrogation is voluntary if made after a suspect hears and understands the warnings. The main effect of Miranda and other court-imposed mandates in the 1960s was to force police culture to become more professional and regulated with new rules and requirements. Police have adapted to those changes and studies have shown that the number of confessions has, in fact, stayed the same or even increased since Miranda.
Abortion
The abortion rights first upheld in Roe v. Wade as part of personal-liberty rights are upheld as a matter of stare decisis. Abortion thus is not a matter left solely for the individual states to legislate upon. Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992). 5-4 for upholding core Roe v Wade rights.
- The abortion rights are upheld by O'Connor, Kennedy, Souter, Stevens, and Blackmun, with some disagreement on specific state provisions such as a required waiting period. Four dissenting justices (Rehnquist, White, Scalia and Thomas) believe that Roe was wrongly decided (right to an abortion is not "fundamental" because it has no textual support in Constitution and was regulated historically) and want to overrule it.
- Current state of abortion rights? Blackmun notes in his opinion that abortion rights are protected but that he "fear[s] for the darkness as four Justices anxiously await the single vote necessary to extinguish the [light]." Since 1992, one of those four Justices (White) and Blackmun himself have been replaced by Clinton nominees, so the pro-abortion rights contingent is presumably now 6-3. Presumably, two justices will need to be replaced before the core Roe rights are again up for possible overturning. Then again, Ginsburg could surprise by deciding that this is a state matter that the federal courts wrongly intervened in.
- What would happen if the U.S. Supreme Court did indeed overturn Roe? Abortion would not necessarily be criminalized. Each individual state would decide for itself whether it would allow abortion and what kind of regulations it would impose.
- State-imposed regulations of abortion are permissible as long as they do not impose an "undue burden" on a woman's right to an abortion. Even though five justices concurred on upholding abortion rights, they disagreed some on the specific provisions in the Pennsylvania law being considered. Three justices (O'Conor, Kennedy and Souter) reject the trimester framework and replace it with one based on viability; state regulation can make getting abortion more difficult as long as the regulation does not impose an "undue burden" on exercising the right. Accordingly, an informed consent requirement and waiting period are not undue burdens and are not unconstitutional (spousal notification requirement, however, is an undue burden and is unconstitutional).
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