Joan Biskupic has
about how "much of [Justice O'Connor's] legal signature already is fading from the court." Joan generously cites me as someone "who has been tracking the fate of O'Connor precedents since she retired." She is referring to a post of mine to SCOTUSblog back in July 2005, listing almost three dozen precedents that were the most vulnerable in the wake of Justice O'Connor's retirement.
Last year, in
to a post by Michael Dorf on 5-4 decisions that might have come out differently if Justice Alito had not replaced Justice O'Connor, and in
, I republished a slightly updated list, which is limited to cases decided in O'Connor's final decade on the Court. I reiterated there that there were five high-profile constitutional areas where overruling was a serious possibility—and the court has already taken big bites out of the O'Connor precedents in three of those areas:
, where the court in
effectively overruled the standard for facial challenges in abortion cases, established in
. In last term's decisions in the Seattle and Louisville race-conscious student-assignment cases, the court severely compromised the impact of the court's 2003 decision in
. In the
case, the court in effect invalidated the 60-year-old requirement that corporations and unions must use separate designated accounts (PACs), rather than general treasury funds, to finance election-related expenditures. The court, in an opinion co-authored by Justices Stevens and O'Connor, had just recently upheld that restriction by a 5-4 vote in
(2004). In future years, the court might also reconsider the basic
precedents that permit reasonable restrictions on campaign contributions.
. In particular, the court could depart from Justice O'Connor's "middle-ground" position on state displays of religious expression (see, e.g.,
(2005) (Ten Commandments displays)); and, more importantly, the court could retreat from nearly 40 years of precedents prohibiting the provision of "direct" financial aid (as opposed to vouchers) from government to religious schools and institutions. Justice O'Connor's concurrence in
(1999) is currently the governing precedent.
I also noted that "[b]ecause most Justices consider
a more serious obstacle to overruling in cases of
construction (rather than constitutional interpretation), precedents below involving statutory construction (e.g., the
decisions on title IX of the Education Act Amendments (sex discrimination)) might be more secure than many of the constitutional precedents, even if Justice Alito would not have voted the same way as Justice O'Connor as a matter of first impression."
Sure enough, last week's decisions in the two retaliation cases basically reaffirmed Justice O'Connor's decision in
and did so expressly on the basis of a strong
Anyway, that list, again, is available