O'Connor's Swan Song?
Today, Justice O'Connor writes in what could be her last opinion on the Supreme Court. The Court handed down a unanimous opinion in the Ayotte v Planned Parenthood abortion case. The Court didn't really say much here. It's definitely not a reexamination of their abortion jurisprudence. O'Connor basically said that the lower court should not have invalidated the entire law since the issue was fairly narrow and sent it back to the lower courts. How anti-climactic.
It really hits the fan when Gonzales v Carhart reaches the Court. This case will examine the 2003 ban on partial birth abortions. The last partial birth abortion case, Stenberg v Carhart, was a 5-4 decision with O'Connor joining the liberals to strike down the law. Having Alito replace O'Connor could shift it 5-4 the other way and uphold the ban. Based on his dissent in Stenberg, Justice Kennedy seems like a very firm vote to uphold the bans under the Casey test.
EDIT: A few Volokh commenters think that there is more going on here than generally thought. This might be a sign that the Court is going away from facial challenges of statutes. Facial challenges rarely succeed, and the Court is more likely to pick apart a law in an as applied challenge. This is part of the reason why Wisconsin Right to Life v Federal Election Commission may come out differently than McConnell (Right to Life is as applied, McConnell was facial).
It really hits the fan when Gonzales v Carhart reaches the Court. This case will examine the 2003 ban on partial birth abortions. The last partial birth abortion case, Stenberg v Carhart, was a 5-4 decision with O'Connor joining the liberals to strike down the law. Having Alito replace O'Connor could shift it 5-4 the other way and uphold the ban. Based on his dissent in Stenberg, Justice Kennedy seems like a very firm vote to uphold the bans under the Casey test.
EDIT: A few Volokh commenters think that there is more going on here than generally thought. This might be a sign that the Court is going away from facial challenges of statutes. Facial challenges rarely succeed, and the Court is more likely to pick apart a law in an as applied challenge. This is part of the reason why Wisconsin Right to Life v Federal Election Commission may come out differently than McConnell (Right to Life is as applied, McConnell was facial).
