Justice O’Connor’s Fragile Legacies

Joan Biskupic has

a story today

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

a comment

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


a post here

, 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

Gonzales v. Carhart

effectively overruled the standard for facial challenges in abortion cases, established in

Stenberg v. Carhart



Race-conscious assignments and affirmative action

. 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


Grutter v. Bollinger



Campaign Finance Regulation

. In the

Wisconsin Right To Life

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

McConnell v. FEC

(2004). In future years, the court might also reconsider the basic

Buckley v. Valeo/McConnell

precedents that permit reasonable restrictions on campaign contributions.


Establishment Clause

. In particular, the court could depart from Justice O’Connor’s “middle-ground” position on state displays of religious expression (see, e.g.,


McCreary County v. ACLU

(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


Mitchell v. Helms

(1999) is currently the governing precedent.


Congress’s powers to remedy discrimination under the Reconstruction Amendments, such as Section 5 of the 14th


. See

Tennessee v. Lane


I also noted that “[b]ecause most Justices consider

stare decisis

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

stare decisis


Anyway, that list, again, is available

over at Balkinization