A Response to Tom's Response

Tom,

I agree with most of the points you made in your response and in your original post. However, let me revise and extend my remarks.

First, with regards to an executive's duty to uphold the constitution, I agree that the question of how an executive should determine whether a bill is unconstitutional is a far more difficult and controversial question than whether an executive has a duty to veto a bill once he has concluded that it is unconstitutional. The point I was attempting to make in my previous post was that Gov. Rounds has a responsibility to make that determination, to tell his constituents how he made it, and, if his determination is that it is unconstitutional, to veto it.

You're right to point out that in my last post I avoided the issue of how executives should determine the constitutionality of legislation, and more specifically whether they should look to SCOTUS precedents in a similar way that judges do. To be honest, I don't have a good, comprehensive answer to that problem, except to say that I think it's fairly clear where the extremes cases are on both ends of the line. To explain by example, if a governor faces a bill that does exactly the same thing as measures which have been consistently and decisively (ie. with little or no dissent) struck down by the Court, that's one thing. At the other extreme, if a governor is facing a bill which arguably might be unconstitutional under a SCOTUS ruling issued in 1890 and not since revisited, that's a very different case. It seems to me that the Roe/Casey line of cases is somewhere in the middle of that spectrum, and as I said, I don't have a good answer to the question of how much intellectual freedom a governor should exercise in interpreting the constitution in such a case.

Regarding the second issue of the political/legal wisdom of what South Dakota is doing, I disagree with you a bit more here. First, I don't think anyone outside the Court has any informed idea on the time frame for another opening. Stevens (for example) could retire or drop dead tomorrow, or he could become the Strom Thurmond of the Court. It really is a situation where those who are talking don't know and those who know aren't talking.

Secondly, I think the measure might make its way to SCOTUS more quickly than you assume because, as far as the lower federal courts are concerned, the law clearly contradicts the current constitutional law (Roe/Casey). Planned Parenthood, etc. will seek an injunction immediately after the S.D. bill is signed to prevent it from ever going into effect. The district court could theoretically drag its feet, but more likely it would probably issue a preliminary or permanent injunction in the challenger's favor very quickly. Likewise, the circuit court could affirm the district court quickly and without argument (what could the state possibly argue in those lower courts?). If that timeline comes to pass, SCOTUS would probably face a choice on whether to grant cert. before their summer break, and could hear the case late this year or next spring.

Finally, on the stare decisis point, I agree that Scalia and Thomas will vote to overturn without regard to any impact from another 5-4 reaffirmation of Roe/Casey. On a more normative note, I also agree that stare decisisconsiderations have little force in dealing with the current abortion precedents. Indeed, I generally place less importance on stare decisis than most others, and I think 5-4 decisions have particularly little stare decisis power. However, I guess I just don't see the benefit to launching a frontal attack on Roe/Casey again until one of the current members of the pro-Roe majority is replaced.