Boerne revisited and other issues...

I was reading some of the Washington Post headlines this morning and one caught my eye. The article (on the partial birth abortion case headed to the SCT) contained a link to the actual law in question. (at least someone on the Post staff knows how to research!) At the beginning, under Section 2, (8), I saw something that reminded me of Borne v. Flores.

However, under well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the "clearly erroneous" standard. Rather, the United States Congress is entitled to reach its own factual findings; findings that the Supreme Court accords great deference; and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.

Like the birth of the RFRA, the partial birth ban was carefully crafted to both recognize and deny Supreme Court precedent. Each branch seems to have a knowledge of how things are supposed to be run, but in the end, they wind up making decisions that often contradict that knowledge. 'Separation of powers' is touted in concept, but denied in practice. Boerne is most certainly one such case.

The buzz in recent SCOTUS news, though, has been all about O'Connor's replacement: Samuel Alito. His first day on the bench was intriguing, especially in the eyes of the Post, but so far nothing to shock anyone. Yet Alito has the vague reputation of supporting the ban. With Alito in the picture, it will likely mean Roberts, Scalia, Thomas, and Alito all vote together. I don't hope for a majority win in this case, but perhaps, perhaps...we could snag a Stevens or Breyer.

All in all, I do wonder what the Partial Birth Ban's fate will be in Gonzalez v. Carhart.




I saw this earlier today, and I tend to agree. Definitely priceless.





I am all about Cruise Missiles.