Supreme Court Decisions in Peril

Court Limiting and Overruling Key Decisions

This term the Supreme Court’s new majority limited or expressly overruled key decisions protecting reproductive freedom, religious freedom, and more.

This term, the Supreme Court overturned or limited several landmark cases. In decisions such as Gonzales v. Carhart, Hein v. Freedom from Religion Foundation, F.E.C v. Wisconsin Right to Life, and Ledbetter v. Goodyear Tire, the Supreme Court’s new majority limited or expressly overruled key decisions protecting reproductive freedom, religious freedom, campaign finance legislation, and equal pay for equal work.


Other cases may soon be overturned. The first set of such cases under each category consists of 5-4 decisions in which Justice O’Connor cast the key vote. In these cases, the new majority likely already has the votes to overturn existing precedent. The second group of cases consists of decisions that could be at risk if another vacancy occurred and an additional member was added to the Court’s conservative bloc. In those circumstances, even more precedent could be threatened, including several important decisions limiting the president’s power during wartime.


Our list is not comprehensive, but it clearly reflects a broad range of areas—from women’s rights to executive power to the death penalty—where longstanding laws could change dramatically.


Religion Clauses


O’Connor Key Vote:


McCreary County v. ACLU (2005): McCreary County narrowly reaffirmed the Lemon test, which prohibits government actions that have the purpose or effect of aiding or hindering religion or that excessively entangle the government with religion. Should this case be overturned, both states and the federal government will be free to directly fund religion so long as they do not coerce religious activity either by punishing non-believers or by conditioning a government benefit on a religious act.


Mitchell v. Helms (1999): In Mitchell, a 4-2-3 Court upheld a government program that provided materials such as textbooks to private schools, including religious schools.

  • Justice O’Connor, joined by Justice Breyer, wrote the controlling concurrence, which upheld the instant program, but also held that government funds given to a religious school may not be spent on religious indoctrination.
  • Justice Thomas’ plurality decision would have imposed a much looser standard, allowing any program which is both neutral—available to secular and religious schools alike—and is itself not religious in nature, such as a government program that provides Bibles to schools or that can be used by any school, secular or religious, to build a chapel. Under the plurality’s rule, states may create a voucher program that directly funds private religious schools so long as private secular schools are also eligible to receive the money.

Other Close Decisions:


Lee v. Weisman (1992): Lee dealt with school-sponsored prayer during a public school graduation ceremony.

  • Justice Kennedy’s majority decision held that this program was unconstitutional because it coerced religious participation by forcing a non-believing student to either attend a religious ceremony or skip his own graduation. The Court reasoned that this was conditioning a government benefit on participation in religion, which it held to be unconstitutional coercion.
  • Justice Scalia dissented, arguing that the government only violates the Establishment Clause if it coerces religious participation “by force of law and threat of penalty.”

Racial Justice


O’Connor Key Vote:


Grutter v. Bollinger (2003): The Court, in an opinion by Justice O’Connor, held that diversity is a compelling interest and that race may be used as a permissible “plus” factor in university admissions.

  • While not joining the majority, Justice Kennedy’s dissent left open the possibility that a future affirmative action program could be found constitutional if “individual assessment is safeguarded through the entire process.”
  • Justices Scalia and Thomas staked a position to the right of Kennedy, suggesting that any consideration of race in admissions is unconstitutional.

Women’s Rights


O’Connor Key Vote:


Jackson v. Birmingham Board of Education (2005): Justice O’Connor wrote this 5-4 decision holding that a whistleblower who is not himself the victim of sex discrimination may sue under Title IX if he is retaliated against for complaining about that discrimination.


Davis v. Monroe County Board of Education (1999): In a 5-4 decision by Justice O’Connor, the Court held that when a school is “deliberately indifferent” to student-on-student sexual harassment it may be held liable under Title IX.


Other Close Decisions:


J.E.B. v. Alabama (1994): The Court held that the Constitution does not permit peremptorily strikes of jurors on the basis of gender. Although Kennedy wrote a separate opinion concurring in the judgment, he expressly held that gender-motivated peremptory strikes are unconstitutional. Justice Scalia (joined by Rehnquist and Thomas) dissented, arguing that attorneys should be allowed to exclude women via peremptory strikes because they believe it would be better for their case.


Planned Parenthood v. Casey (1992): To the extent that Justice Kennedy did not entirely abandon his support of abortion rights in Gonzales v. Carhart, he remains the swing vote keeping some aspects of Casey and Roe v. Wade alive.


Gay, Lesbian, Bisexual, and Transgender Rights


Other Close Decisions:


Lawrence v. Texas (2003): In an opinion by Justice Kennedy, the Court held that the government may not criminalize consensual sexual activity between two adults. Justices Rehnquist, Scalia, and Thomas dissented.


Romer v. Evans (1996): Justice Kennedy’s majority opinion held that a Colorado constitutional amendment that was motivated solely by animus against gay people violates the 14th Amendment. Justice Scalia, joined by Rehnquist and Thomas, dissented, arguing that Colorado could enact a law motivated by its belief that “homosexuality” is “reprehensible.”




O’Connor Key Vote:


Tennessee v. Lane (2004): In a 5-4 decision, the Court held that Congress could use its Section 5 power to abrogate state sovereign immunity in order to remedy violations of fundamental rights.

  • The Rehnquist Court, in its 5-4 decision in Seminole Tribe v. Florida, granted states broad sovereign immunity from lawsuits by stripping Congress of its power to abrogate this immunity. Later decisions clarified that Congress could abrogate state sovereign immunity, but only when it acted under its Section 5 power to enforce the 14th Amendment. Therefore, the applicability of many federal civil rights statutes to the states hinges upon whether or not that statute falls within Congress’ Section 5 power.
  • In Tennessee vs. Lane, the Court held that the Americans with Disabilities Act could reach a paralyzed individual who was unable to access a state courtroom without a demeaning crawl up the courthouse stairs. As access to courts is a fundamental right, this case stands for the notion that Congress may use its Section 5 power to protect fundamental rights.
  • Justice Kennedy joined a dissent arguing that in order to invoke its Section 5 power to remedy violations of fundamental rights, Congress must be able to show a history of the particular violation that the plaintiff is now seeking to remedy. In this case, absent a history of states denying the disabled access to courts, the Americans with Disabilities Act could not reach a disabled person denied that fundamental right.

Rush Prudential HMO v. Moran (2002): Many decisions have held that the federal Employee Retirement Income Security Act statute preempts many progressive health care reforms. In Moran, a 5-4 majority joined by Justice O’Connor upheld such a progressive law against an ERISA challenge. The law at issue here was a state law allowing patients whose insurance company denied them access to an outside-the-network physician to still receive care from that physician if their in-the-network doctor deemed it medically necessary.


Camps Newfound/Owatonna v. Town of Harrison (1997): The Supreme Court has interpreted the Commerce Clause to have a “dormant” aspect that prohibits state laws which place an “undue burden” on interstate commerce unless those laws are ratified by Congress. In a 5-4 decision joined by Justice O’Connor, the Court held that a Maine law, which gave property tax benefits only to corporations that operated principally for the benefit of Maine residents, violates the Dormant Commerce Clause.


Other Close Decisions:


Nevada Dept. of Human Resources v. Hibbs (2003): In a similar case to Lane, Hibbs held that the Section 5 power extends to federal statutes that remedy discrimination against classes entitled to heightened scrutiny under the Equal Protection Clause, such as women, racial minorities, and persons of foreign descent. Although this was a 6-3 decision, with Chief Justice Rehnquist writing for the majority, many commentators believe Rehnquist joined the majority so that he could water down the Court’s decision. Justice Kennedy was among the dissenters.


Executive Power


O’Connor Key Vote:


Zadvydas v. Davis (2001): This case involved two aliens who were detained in the U.S. pending deportation although no nation would accept them. The 5-4 majority, which Justice O’Connor joined, held that after six months of detention the government must demonstrate that another nation is ready to accept the alien, or that the alien is dangerous or a flight risk, or free the alien from detention.

  • Justice Kennedy dissented, but in his dissent suggested that the aliens could be freed from detention in a future case that demonstrated the government’s determination for detention to continue was “unreasonable.”
  • Justice Scalia, joined by Justice Thomas, expressly took a position to the right of Kennedy, arguing that the aliens had no right to be in the country and thus had no rights to challenge their detention.

Other Close Decisions:


Hamdan v. Rumsfeld (2006): President Bush, on his own authority, ordered numerous so-called “enemy combatants” detained at Guantanamo Bay. These detentions were reviewable only by military commissions that ultimately required the president’s approval. A 5-3 Court held this process unconstitutional—Chief Justice Roberts did not participate—reaching two important holdings.

  • While avoiding the constitutional question of whether and when Congress may strip the Supreme Court of jurisdiction, the Court narrowly construed the Detainee Treatment Act of 2005 to not prevent the Court from hearing this case. The dissenting Justices—Scalia, Thomas and Alito—argued that Congress may strip the Court of jurisdiction to hear this, or presumably any, case.
  • The Court held that the president could not act on his own authority here and must seek the authorization of Congress to proceed with his plans. The dissent, however, would have held that the president may act on his own authority to establish military tribunals in wartime.

Rasul v. Bush (2004): Six Justices held that federal courts have jurisdiction to hear cases from aliens challenging their detention outside the United States at Guantanamo Bay, although Justice Kennedy disagreed with the Court’s reasoning. The dissent of Scalia, Rehnquist, and Thomas would have denied any review to aliens held outside the U.S.


Criminal Justice


O’Connor Key Vote:


Rompilla v. Beard (2005): Criminal defense counsels have a duty to investigate evidence that they know the prosecution will use at trial. In this case, the defense counsel was found ineffective because he failed to view files pertaining to his client’s past convictions.


Small v. United States (2005): A federal statute stating that “any person… convicted in any court … of a crime punishable by imprisonment for a term exceeding one year” may not possess a firearm does not apply to convictions in foreign courts.


Groh v. Ramirez (2004): A warrant is invalid if it fails to describe the objects of the search, even if the application for the warrant did describe them.


Stogner v. California (2003): A law violates the ex post facto Clause if it attempts to reactivate time-barred prosecutions by extending the statute of limitations on a crime after that statutory period has already passed.


Alabama v. Shelton (2002): The Sixth Amendment right to counsel is invoked when a person is placed on trial for a crime that could potentially lead to imprisonment. In this case, a defendant who did not knowingly and intelligently waive his right to counsel was given a suspended sentence without benefit of counsel. A 5-4 Court with Justice O’Connor in the majority held that if the defendant was given such a sentence without counsel, the state could not activate the sentence and send him to prison.


Kelly v. South Carolina (2002): A capital defendant has a due process right to inform the jury that he is ineligible for parole, thus informing them that there is a way to keep him away from society without imposing the death penalty.


Richardson v. McKnight (1997): In constitutional claims against state officers, those officers are entitled to “qualified immunity,” which makes them immune to many suits. Richardson held, in a 5-4 decision joined by Justice O’Connor, that prison guards employed by a private prison contractor are not state officers entitled to qualified immunity.


Other Close Decisions:


Hudson v. Michigan (2006): In a 5-4 decision, Justice Kennedy joined the conservative bloc to hold that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock and announce” rule. Many commentators, however, have noted that Kennedy wrote a separate opinion expressing that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt,” and have warned that this may indicate that the conservative bloc justices are ready to overturn the 90 year-old exclusionary rule.


Roper v. Simmons (2005): In a 5-4 decision by Justice Kennedy, the Court held that it is cruel and unusual punishment and violates Due Process to execute persons who were under 18 at the time of their offense. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, wrote a dissent arguing that the Court should abandon the “evolving standards of decency” test under the Eighth Amendment, and instead hold that the Court may only find cruel and unusual punishment when the punishment at issue would have been unconstitutional at the time of the ratification of the Bill of Rights. Justice O’Connor dissented, but did not join Scalia’s dissent.


Atkins v. Virginia (2002): In a 6-3 decision joined by Justices Kennedy and O’Connor, the Court held that it is cruel and unusual punishment to execute the mentally retarded.


Voting Rights & Democracy


O’Connor Key Vote:


McConnell v. FEC (2003): In McConnell, a 5-4 majority that included Justice O’Connor, upheld the Bipartisan Campaign Reform Act (BCRA) against a facial challenge. This term, three Justices—Scalia, Kennedy and Thomas—argued in FEC v. Wisconsin Right to Life that McConnell should be overturned, while two other Justices—Roberts and Alito—held in the plurality that BCRA’s provisions restricting “electioneering communications” could not be constitutionally applied in a particular case. Their opinion also suggested that McConnell could be reconsidered in a future decision.


Easley v. Cromartie (2001): In a highly fact-based inquiry, the Court ruled 5-4 with Justice O’Connor in the majority that a voting district was drawn for the permissible purpose of creating a safe Democratic seat—not for an impermissible purpose that considered race as the predominant factor.


Morse v. Republican Party of Virginia (1996): The Republican Party of Virginia required its primary voters to pay a fee in order to participate in a convention to select the Senate nominee.

  • A divided 5-4 majority, which included Justice O’Connor, held that this pay-to-vote convention violated the Voting Rights Act, and that the Voting Rights Act did not violate the First Amendment. The majority Justices divided 3-2 on their reasoning.
  • Justice Kennedy, joined by Chief Justice Rehnquist, avoided the constitutional question, suggesting that the Voting Rights Act did not forbid this method of selecting a nominee.
  • Justice Scalia, joined by Justice Thomas, held that the First Amendment’s free association rights encompassed the Republican Party’s right to choose its own method for holding a convention, including one that required voters to pay a fee.

Other Close Decisions:


Chisom v. Roemer (1991): The Court held in a 6-3 decision that the Voting Rights Act applies to elections of state judges, although only two of the majority Justices remain on the Court. Justice Scalia, in a dissenting opinion that was joined by Justice Kennedy, held that the Voting Rights Act’s text refers to “representatives” and this word excludes members of the judiciary.


Rutan v. Republican Party of Illinois (1990): In a 5-4 decision, the Court held that the First Amendment prohibits a state governor from hiring or promoting only government employees who are members of the Republican Party. Justice Scalia dissented, warning that “we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by ‘party discipline,’ before the demands of small and cohesive interest groups.” Justice Kennedy joined this dissent, and Justice O’Connor joined it in part. Justice Thomas was not yet on the Court.




O’Connor Key Vote:


Brown v. Legal Foundation of Washington (2003): Legal services for the poor in all 50 states are funded in part by a complicated scheme in which attorney’s client-escrow accounts that cannot draw interest are pooled into an interest-bearing account, and that interest is transferred to legal services. The important factor in this scheme is that the owner of the principal suffers no monetary loss, and that the interest that does accrue could only do so under this scheme. A 5-4 Court with Justice O’Connor in the majority held that while this scheme does constitute a Taking, the cost of the Taking to the owner of the principal is nothing, and therefore no compensation is required.


Other Close Decisions:


Kelo v. New London (2005): A 5-4 majority that included Justice Kennedy held that the Court would not apply heightened scrutiny to Takings that allegedly were not enacted for “public use.”


Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002): A 6-3 Court held that a state could enact a temporary moratorium on development so long as the state’s interest in the moratorium overrides the landowner’s interest in developing. In dissent, Justices Rehnquist, Scalia, and Thomas suggested that this moratorium deprived the landowners of all valuable use of their land for six years and was therefore a Taking.


Access to Justice


O’Connor Key Vote:


Hibbs v. Winn (2004): Under the Tax Injunction Act, federal courts may not “enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law.” In a 5-4 decision joined by Justice O’Connor, the Court held that the word “assessment” is tied to the collection of taxes, and therefore federal courts are not barred from enjoining a tax credit which violates the Establishment Clause.


Alaska Department of Environmental Conservation v. EPA (2004): In a 5-4 decision joined by Justice O’Connor, the Court held that the EPA has the authority to prevent the construction of a polluting facility, even when the appropriate state agency has granted a permit to the facility, if it determines that the state agency unreasonably issued this permit.

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