in2herbs
in2herbs's JournalRe: Roe: I haven't heard this question discussed here or elsewhere so I'm presenting portions
of a legal summary that addresses the question below.
QUESTION: What if the five USSC justices can’t agree on a single rationale for overturning Roe in their pursuit to overturn Roe? Is new precedent established and, if so, which Justice’s opinion becomes the new precedent for lower courts to follow?
MY NOTE: Everything that appears in quotes in this post has been taken from an article titled "What Happens When Five Supreme Court Justices Can’t Agree?” written by Kevin M. Lewis, Legislative Attorney for an organization called Congressional Research Service. The link to the entire article is here: https://sgp.fas.org/crs/misc/LSB10113.pdf
“The Supreme Court has stated that “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” That seemingly simple rule, however, is not always so simple to apply in practice. For example, it is not self-evident how should courts identify which Justice’s opinion rests on the “narrowest grounds.” If the opinion resting on the “narrowest grounds” only garnered a single Justice’s vote, does that opinion have precedential effect even when every other Justice on the Court disagrees with it?”
“If, instead, the rationale advanced by the plurality opinion does not overlap with that advanced by the concurring opinion, such that no opinion serves as “a logical subset of other, broader opinions,” the various opinions lack precedential effect and “only the specific result [of the case] is binding on lower federal courts.”
MY NOTE: In one cited case the dissenting opinion of one justice became the direction for the lower courts based on this narrowest grounds concept.
The following is a 6/4/2018 update about the court’s self-imposed rationale quandary. “UPDATE, 6/4/2018: On June 4, 2018, the Supreme Court issued its decision in Hughes. The Court ultimately deemed it “unnecessary” to decide which opinion governs when no single opinion enjoys a majority and instead decided the case on alternative grounds. Thus, the underlying circuit split concerning the Marks rule remains unresolved, and guidance from the Supreme Court regarding “the proper application of Marks” will have to await a future case.”
MY FINAL THOUGHT: It appears that the USSC must give specific guidance in Dobbs for the lower courts to follow if they want uniform compliance by the lower courts to uphold their decisions overturning Roe. This means that they can no longer leave Marks unaddressed. Otherwise their Dobbs decision will amount to nothing more than a proclamation, and a non-binding one at that.
IS ADDING MORE SENATORS A SOLUTION WORTH CONSIDERING?
I am sure this idea has appeared here and elsewhere, but I have not read about it, so I’m putting it out here: INCREASE THE NUMBER OF SENATORS based on the population figures in the official census conducted every ten years to allocate members to the House of Representatives.
There’s an excellent article in the Atlantic by Eric W. Orts which includes a pdf discussing a three-part path for how the Senate can increase the number of senators under the Voting Rights Act. No Constitutional amendment needed. According to Mr. Orts: “Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.”
Here are a few excerpts from the article and its pdf attachment.
The article appeared in the Atlantic and was written by Eric W. Orts. The link to the Atlantic article is: https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/
The pdf within the Atlantic article is at this link: https://faculty.wharton.upenn.edu/wp- content/uploads/2018/12/Senate.Democracy.12.7.18.final_.pdf
Here are some excerpts from the pdf:
“The unequal representation created by the original one state, two senators rule violates principles of voting rights found in the Voting Rights Amendments of the Constitution (including the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments).”
*****
“Congress, acting within its proper scope of constitutional authority under the Voting Rights Amendments, should enact a statute reforming the allocation of senators to the states. The legislation abolishes the rule of one state, two senators. It allocates senators to the states in a manner that both respects the original commitment to federalism (allocating at least one senator to each state) and the rights of American citizens to participate on an equal basis in their political democracy (allocating a greater number of senators to more populous states).”
*******
END.
My Comment: The pdf sets out a three-part process to accomplish this and argues that the Electoral College would better represent the population by adding more Senators. This is the proposition I am putting my support to for creating the changes we need to protect US.
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