BACK TO THE PAST: SUPREME COURT JUSTICES EDITION
Welcome to the latest blockbuster movie, "Back to the Past: Supreme Court Justices Edition". In this hilarious parody of the classic "Back to the Future" franchise, we follow the adventures of the Supreme Court Justices as they travel back in time to destroy the gains made by women and minorities and give billionaires free reign to form the American plutocracy.
Our story begins with the conservative majority on the Supreme Court, led by Chief Justice John Roberts, feeling nostalgic for the good old days when women and minorities knew their place and billionaires ruled the world. So, they decide to hop into their time machine, which just happens to be an old Studebaker Avanti, and travel back in time to the 1950s.
Once they arrive, they immediately set to work dismantling all of the progress made since World War II. They overturn landmark decisions like Brown v. Board of Education and Roe v. Wade, and reinstate segregation and back-alley abortions. They also declare that corporations are people and money is speech, effectively ending any hope of campaign finance reform.
But it's not just women and minorities who are in their crosshairs. They also take aim at the middle class, gutting worker protections and labor unions, and making it easier for corporations to exploit their employees. They even repeal the New Deal, sending the country back into economic depression.
As they revel in their newfound power, they are confronted by a group of plucky heroes who have also traveled back in time to stop them. Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan team up with a young Thurgood Marshall and Cesar Chavez to take on the conservative justices.
What follows is a thrilling battle between good and evil, as the heroes fight to protect the gains made by women and minorities and ensure a more just and equitable future for all. Along the way, they encounter a host of colorful characters, from a young Bernie Sanders to a time-traveling Elon Musk.
In the end, justice prevails, and the conservative justices are sent back to their own time, defeated but not deterred. As they return to the present day, they vow to continue their crusade against progress and equality, but they know that they will always be haunted by the memory of the brave heroes who stood up to them in the past.
So, if you're looking for a hilarious romp through time and space, with a healthy dose of political satire thrown in for good measure, then "Back to the Past: Supreme Court Justices Edition" is the movie for you. It's a wild ride that you won't soon forget!
THE DEFT DIVE
The Roberts court has reversed several precedents in the past 14 years, mostly by 5-4 votes along ideological lines. Some of the most notable ones are:
- - **Citizens United v. FEC** (2010), which overturned **Austin v. Michigan Chamber of Commerce** (1990) and part of **McConnell v. FEC** (2003), and allowed unlimited corporate and union spending in elections as a form of free speech⁴.
- - **Shelby County v. Holder** (2013), which overturned part of **South Carolina v. Katzenbach** (1966) and invalidated the coverage formula of the Voting Rights Act of 1965, which required certain states and localities to obtain federal approval before changing their voting laws⁴.
- - **Janus v. AFSCME** (2018), which overturned **Abood v. Detroit Board of Education** (1977) and ruled that public sector unions cannot collect fees from non-members who benefit from collective bargaining, as it violates their First Amendment rights⁴.
- - **Knick v. Township of Scott** (2019), which overturned **Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City** (1985) and allowed property owners to sue local governments for takings claims in federal court without first seeking compensation in state court⁵.
- - **Ramos v. Louisiana** (2020), which overturned **Apodaca v. Oregon** (1972) and held that the Sixth Amendment right to a jury trial requires a unanimous verdict to convict a defendant of a serious offense in both federal and state courts⁵.
Bing, 7/3/2023
(1) How often does the Supreme Court overturn precedents like Roe v. Wade .... https://www.washingtonpost.com/politics/2019/05/21/how-often-does-supreme-court-overturn-precedents-like-roe-v-wade/.
(2) Precedent And The Roberts Court In 4 Charts - Law360. https://www.law360.com/articles/1207062/precedent-and-the-roberts-court-in-4-charts.
(3) The Supreme Court has overturned precedent dozens of times, including .... https://bing.com/search?q=roberts+court+reversed+precedents.
(4) Supreme Court reverses affirmative action, gutting race-conscious .... https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision.
(5) The Supreme Court has overturned precedent dozens of times in the past .... https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052.
(6) The Supreme Court has overturned precedent dozens of times, including .... https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941.
The current supreme court has reversed two major precedents in the past year: **Roe v. Wade** and **Grutter v. Bollinger**. Roe v. Wade (1973) was the landmark decision that recognized a constitutional right to abortion, while Grutter v. Bollinger (2003) was the last decision that upheld race-conscious affirmative action in higher education²³. The court overturned these precedents by 6-3 votes, with the conservative majority citing the need to protect human life and equal protection under the law²⁵.
Some of the changes that have occurred since these precedents were established are:
- - The composition of the supreme court has shifted to a 6-3 conservative majority, with three justices appointed by former President Trump.
- - The political and social polarization of the country has intensified, with abortion and affirmative action becoming highly divisive issues among different groups and regions.
- - The scientific and technological advances have made abortion safer and more accessible, as well as raised new ethical questions about fetal development and viability.
- - The demographic and economic changes have increased the diversity and inequality of the population, as well as the demand for higher education and skilled workers.
7/3/2023
(1) Who died and made the Supreme Court a Congress?. https://www.msnbc.com/the-mehdi-hasan-show/the-mehdi-hasan-show/supreme-court-congress-republican-majority-rcna92394.
(2) Supreme Court Reverses Decades of Precedent to Curtail Affirmative Action. https://truthout.org/articles/supreme-court-reverses-decades-of-precedent-to-curtail-affirmative-action/.
(3) Supreme Court reverses decades of precedent by ending affirmative .... https://www.npr.org/2023/06/29/1185140161/supreme-court-reverses-decades-of-precedent-by-ending-affirmative-action.
(4) Five times the Supreme Court reversed a precedent. https://thehill.com/regulation/court-battles/3477148-five-times-the-supreme-court-reversed-a-precedent/.
(5) In 370 days, Supreme Court conservatives dash decades of abortion and affirmative action precedents. https://apnews.com/article/supreme-court-affirmative-action-abortion-e6fc46c12a6bf83a96874586b5858d18.
The Supreme Court does not have a fixed formula for deciding when to overturn a precedent, but it has stated that there must be some special justification or strong grounds that goes beyond disagreeing with a prior decision's reasoning. The court has also considered several prudential and pragmatic factors that balance the need for stability and correction in the law, such as:
- - **The quality of the past decision's reasoning**, meaning whether the decision was well-reasoned, persuasive, and based on sound legal principles or whether it was flawed, illogical, or arbitrary¹³.
- - **The consistency of the past decision with related decisions**, meaning whether the decision fits within the court's broader doctrinal framework or whether it conflicts, departs, or is eroded by other rulings on similar issues¹³.
- - **The legal developments since the past decision**, meaning whether the decision reflects the current understanding of the Constitution or whether it is outdated, obsolete, or incompatible with new laws, doctrines, or values¹³.
- - **The reliance on the past decision throughout the legal system and society**, meaning whether the decision has generated expectations, investments, or behaviors that would be disrupted, harmed, or unfair if the decision were overruled or whether the decision has caused negative consequences, injustices, or hardships that would be alleviated by overruling¹³.
These factors are not exhaustive or determinative, and different justices may weigh them differently depending on their judicial philosophy, ideology, or views on specific issues. Ultimately, the court has to balance its own institutional legitimacy and authority with its responsibility to interpret and apply the Constitution faithfully and fairly.
Bing, 7/3/2023
(1) The Rights and Wrongs of Overruling Precedent - Reason.com. https://reason.com/volokh/2019/06/26/the-rights-and-wrongs-of-overruling-precedent/.
(2) Does overturning precedent undermine the Supreme Court’s legitimacy .... https://hls.harvard.edu/today/does-overturning-precedent-undermine-the-supreme-courts-legitimacy/.
(3) The Supreme Court’s Overruling of Constitutional Precedent - CRS Reports. https://crsreports.congress.gov/product/pdf/R/R45319.
(4) When can the Supreme Court overturn precedent? - LegalKnowledgeBase.com. https://legalknowledgebase.com/when-can-the-supreme-court-overturn-precedent.
(5) 8 Landmark Supreme Court Cases That Were Overturned. https://www.history.com/news/landmark-supreme-court-cases-overturned.
Originalism and living constitutionalism are two competing theories of constitutional interpretation. They differ in how they approach the meaning and authority of the constitutional text.
- - **Originalism** is the theory that the meaning of the constitutional text is fixed at the time of its ratification and that it should bind constitutional actors, such as judges, legislators, and executives. Originalists argue that the original meaning can be discovered by examining the text itself, the historical context, the intentions of the framers, or the public understanding at the time¹². Originalists contend that originalism is the best way to preserve the rule of law, respect democratic choices, and limit judicial activism¹².
- - **Living constitutionalism** is the theory that the meaning of the constitutional text is not fixed but can and should evolve in response to changing circumstances and values. Living constitutionalists argue that the constitutional text is often vague, ambiguous, or outdated, and that it needs to be interpreted in light of contemporary norms, practices, and problems³⁴. Living constitutionalists contend that living constitutionalism is the best way to adapt the Constitution to modern realities, protect fundamental rights, and promote social progress³⁴.
These two theories often clash on controversial issues, such as abortion, affirmative action, gun rights, and campaign finance. They also reflect different views on the role and legitimacy of the Supreme Court as the final arbiter of constitutional questions.
Bing, 7/3/2023
(1) | University of Virginia School of Law. https://www.law.virginia.edu/scholarship/publication/lawrence-b-solum/953451.
(2) Originalism Versus Living Constitutionalism: The Conceptual Structure .... https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3248&context=facpub.
(3) CONSTITUTIONAL INTERPRETATION: AN OVERVIEW OF ORIGINALISM AND LIVING .... https://lawreview.law.uic.edu/constitutional-interpretation-an-overview-of-originalism-and-living-constitutionalism/.
(4) Living Constitutionalism v. Originalism. - Human Events. https://humanevents.com/2019/07/02/living-constitutionalism-v-originalism/.
(5) Originalism Vs Living Constitution Theory | ipl.org. https://www.ipl.org/essay/Originalism-Vs-Living-Constitution-Theory-PJYW8X5QDAB.
Citizens United was a landmark Supreme Court decision that overturned previous campaign finance restrictions and allowed corporations and other groups to spend unlimited money on elections as a form of free speech². The ruling has been widely criticized for its impact on the role of money and influence in politics, as it has led to the creation of super PACs, which can raise and spend unlimited funds from wealthy donors, and the expansion of dark money, which is spending by groups that do not disclose their sources of funding¹³. Some argue that Citizens United has undermined the democratic process, increased political polarization, and favored special interests over the public interest³⁴.
However, whether Citizens United has reversed the gains made since World War II is a matter of opinion and perspective. Some might point to the positive aspects of the ruling, such as its protection of free speech rights, its promotion of political diversity and competition, and its empowerment of grassroots movements and social causes⁵. Others might disagree with the premise that there were gains made since World War II, or that those gains were related to campaign finance regulation. Ultimately, the question of how Citizens United has affected American democracy is complex and contested, and it may depend on one's values, beliefs, and goals.
Bing, 7/3/2023
(1) Citizens United vs. FEC - HISTORY. https://www.history.com/topics/united-states-constitution/citizens-united.
(2) Citizens United Explained | Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/citizens-united-explained.
(3) A look at the impact of Citizens United on its 9th anniversary. https://www.opensecrets.org/news/2019/01/citizens-united/.
(4) Citizens United and Its Impact on Campaign Financing: A Brief Overview .... https://home.heinonline.org/blog/2018/03/citizens-united-and-its-impact-on-campaign-financing-a-brief-overview/.
(5) 13 Years of Impact: The Long Reach of ‘Citizens United’. https://www.ncsl.org/state-legislatures-news/details/13-years-of-impact-the-long-reach-of-citizens-united.
Some of the conservative justices who voted to overturn Roe v. Wade did say that Roe was settled law and that they follow precedent and stare decisis at their confirmation hearings. For example, Neil Gorsuch said that Roe was "a precedent of the U.S. Supreme Court" that had been "reaffirmed many times" and was "worthy as treatment of precedent like any other"². Brett Kavanaugh said that Roe was an "important precedent of the Supreme Court" that had been "reaffirmed many times" and was "entitled the respect under principles of stare decisis"³. Amy Coney Barrett said that Roe was a "case that is on the books" and that she would "follow all Supreme Court precedent without fail" unless there was a reason to depart from it.
However, saying that Roe was settled law or precedent did not necessarily mean that they agreed with its reasoning or outcome, or that they would never vote to overturn it. They also avoided answering hypothetical questions about how they would rule on future cases involving abortion, citing judicial ethics and independence²³ . Moreover, they indicated that there were circumstances in which they would be willing to reconsider or overrule precedents, such as when they were "grievously wrong", "unworkable", or "inconsistent with other constitutional principles"²³ . In their draft opinion, they argued that Roe met those criteria and therefore should be overturned¹.
It is worth noting that not all conservative justices who voted to overturn Roe said that it was settled law or precedent at their confirmation hearings. Clarence Thomas said that he had no opinion on Roe and had never discussed it with anyone. Samuel Alito said that he would approach the issue of abortion with an open mind and respect for precedent, but he did not explicitly endorse Roe as settled law or precedent.
Bing, 7/3/2023
(1) What the conservative justices who voted to overturn Roe v. Wade said .... https://www.washingtonpost.com/politics/2022/06/24/justices-roe-confirmation-hearings/.
(2) Why conservative Justice Potter Stewart joined the majority in Roe v. Wade. https://thehill.com/opinion/judiciary/3482007-why-conservative-justice-potter-stewart-joined-the-majority-in-roe-v-wade/.
(3) What conservative justices said about Roe v. Wade at their ... - NPR. https://www.npr.org/2022/05/03/1096108319/roe-v-wade-alito-conservative-justices-confirmation-hearings.
