Well, now we know what the authors of Bush v. Gore had in mind
The conservatives had to help Bush steal election 2000 so he could nominate more of their guys so they'd get the votes to start overturning settled law. Of course, Roberts and Alito had to lie about their intentions during their confirmation hearings but heck, they're Republicans, so what did anyone expect?
Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?
It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last.
No, I wouldn't think so. Say, do you think the Times is preparing us for a lot worse?
I'd say so.
So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)
Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.
As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling still on the books, doing its overruling “by stealth, without having the grace to admit that is what they were doing,” in the words of Ronald Dworkin, the legal philosopher, who wrote a highly critical appraisal of the new decision in The New York Review of Books last month. “Justices Roberts and Alito had both declared their intention to respect precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon how little those declarations were worth,” Professor Dworkin said from London in an e-mail message.
Of course, they're good Straussians--It's always OK to lie to les autres. Tell me again why we regard the Roberts Court as legitimate?
What Thurgood Marshall said:
“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term. Two hours later, he announced his own retirement, his words still hanging in the air.
Yep. "Power, not reason." Republicans, all.