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Supreme Court Decisions

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I am about to go where angels fear to tread so I admit my status up front.


During the Supreme Court Hearings, and I don't just mean Alito I mean Roberts and well, I have heard a lot about past Supreme Court decisions and how some considered them to be "law of the land" to which I thought. "Huh?".


I would like some of the lawyers on the board, as well as the constitutionally enabled to talk about Supreme Court decisions that have been overturned, well actually have any ever been? What were the circumstances?


I know a certain Supreme Court decision really burns my bum whenever I think about it and think it should be overturned and I think you all know which one I mean. I can't beleive a governmental unit can condemn private property so that commerical enterprises can be built. I am not talking about building a road, I mean building condo's where single family dwellings were.


Anyway, what would it take to reverse that decision? or any?(This message has been edited by OldGreyEagle)

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I can't answer that question, and I share your sentiments, but I can tell you many states, including Georgia, are tackling the issue this year. They are tightening the use of eminent domain, trying to prohibit the very problem you mention. A HUD bill has been proposed which would prevent HUD funds from being used for eminent domain for any economic development. Not the answer you are looking for, but some progress towards solving the problem in a different manner.

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Well, lets see


There was Plessy v. Fergusson (endorsing laws that provided for separate but equal accommodation for blacks and whites) which was reversed by Brown v. Board of Education.


There was Olmstead v. United states (allowing wiretaps without warrants) which was reversed in Katz v. United States


In Minersville School District v. Gobitis, the court ruled that Jehovas Witness children could be expelled from school for not saluting the flag state authority trumped religious freedom. That decision was reversed just 3 years later in W. Virginia BOE v. Barnett, following the replacement of two justices.


In Betts v. Brady, the court ruled that defendants in state courts were not entitled to representation by counsel even if indigent. That was reversed 20 years later in the 9-0 decision Gideon v. Wainwright.


Perhaps the biggest was NLRB v. Jones & Laughlin Steel, which in 1937 reversed a whole series of 19th century precedents on Congresss authority under the interstate commerce clause, and paved the way for FDRs New Deal legislation.


There are no doubt others. Its important to remember that stare decisis is not to be tread on lightly. The consequences of not offering great respect to prior decisions would be far worse than any one bad decision. Most of the reversals only happened after many years and major changes in the way we


How to reverse that inane ruling in Kelo? Well, you can go the Minersville route and bring the matter again now that two justices have changed. You can go with state legislation or amendments of state constitutions to limit eminent domain. You can go with federal coercive legislation that cuts off federal funds to states that permit that use of eminent domain. Or you can go with the U.S. constitutional amendment.


Or, for fun, you can try to get each of the justices houses seized by eminent domain in order to create a small business that would offer jobs and pay more in taxes.


Ya, the proper way is probably to address it in the states.

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The quickest decision where the supreme court reversed itself were the pledge of allegiance cases brought by jehovah's witnesses in 1940 and 1943; the original Gobitis case upheld compulsory pledging, but after some JW's were tarred and feathered and one was castrated, the Barnette case said schools could no longer require it.


stare decisis is the term for following past court precidents.


The decision in the property case Kelo v. New London, short of a supreme court reversal, can be addressed a number of ways: state courts might find that their state constitution(s) limit state & local governments (but not federal) in seizure; state & federal legislation could probably do the same (though this is less clear, and federal legislation might not have the jurisdiction to limit cities that want to condemn property - "states rights" and all that) and at least eight states already have such laws and congress may pass a federal law; and, of course, since all of the decisions to seize property are made by elected officials, don't elect the ones who would seize property you don't want seized.


A couple of actions as a result of this decision are:


one developer wants to build a hotel on justice Souter's house.


New London now wants to charge the plaintiffs 5 years rent, saying they have been living on state land for the last five years.

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Ok, so what I get is that the Supreme Court can and has reversed itself, well if not "itself" as in the same 9 justices, at least they do overturn previous "administrations" as if a judicial branch could be called an "administration"


So, why was the call to be sure the justice "nominee" was pro "Roe Vs Wade"? Why was it necessary for Roberts to say that Roe vs Wade was law of the land, or something like that? If the court can reverse itself, why the harpings to replace judges with like thinking people? Ok, you are conservative +1SD you need to be replaced with a conservative +1SD. but your liberal justice is a +2SD liberal, you need a replacement of a +2sd liberal, where did that come from?

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The Supreme Court rarely comes out and says "Farmer Smith vs. Butcher Jones is hereby overrulled." They usually say that the reasoning behind Plessy is no longer working and has created an unequal treatment based upon race, therefore, we now conclude that separate is not equal and schools should be balanced.


The Kello Decision has really sparked and motivated local governments to pass local laws saying that they won't do that. Interesting, the current bill before the South Dakota Legislature doesn't apply to the State, but applies to counties, citys and housing departments.


Interesting note on the "Law of the Land" comments, prior decisions are the law of the land, but can be excepted in one circumstance, then another, until the exceptions swallow the rule!

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SDakota and others have stated it pretty well. There are always cases coming up to SCOTUS that attack Roe or other decisions under different legal theories. I don't really keep track, so I can't tell you what the current arguments are. The concern with Roe is that almost any lawyer who passed con law and the state bar can see it was wrongly decided. The crucial point of Roe was that there is a "right to privacy" in the U.S. Constitution that would prevent states from restricting medical procedures having to do with reproduction. I have never heard a cogent explanation of how you get that right out of the Constitution. So, it's weak in that area and with Alito on the Court, there would probably be enough justices to overturn it in one way or another.


Of course, all that would mean is that it would be up the states to decide whether they wanted such restrictions or not. If Roe was overturned, there would be legislative insanity until it's all settled in each state. I think Alito and Roberts would be reluctant to be responsible for all that and would be reluctant to overturn it on that basis. Roberts pretty much said that.


This, of course, shows the problem with the Court in general. The justices who feel in their hearts that something is right or wrong can always come up with a legal theory to justify a decision supporting it.


BTW, there's a great discussion of this at http://www.hughhewitt.com/ . Hewitt is a conservative, constitutional law professor and talk show guy. Scroll down to Alito-Induced Panic Disorder.(This message has been edited by Kahuna)

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