Scott Lemieux

Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop.

Recent Articles

The Barbour of the Confederacy

Scott here... It's not exactly surprising that Haley Barbour would refuse to issue a posthumous pardon to unjustly convicted civil rights pioneer Clyde Kennard. (And I should say that I happen to share a general principled opposition to pardons in many cases ; whatever the question being raised about a given aspect of the legal system, "making it more arbitrary and capricious" is the wrong answer. When someone is both absolutely innocent of the crime and his conviction was an important symbol of racist authoritarianism, however, these objections obviously don't apply.) Consider his base. It's obviously not reasonable to expect Haley, a man willing to seek the support of the Council of Fascist Conservative Citizens, to repudiate that part of Mississippi's heritage, now is it? (Current headline at the CoCC website : "Multiracial youth more prone to violence say orthopsychiatrists.") But, of course, if people like Trent "We wouldn't have had all these problems if Strom Thurmond had been...

Endangering Roe

On November 30, the Supreme Court heard oral arguments in Ayotte v. Planned Parenthood , the most important abortion case it has heard since it struck down a law banning so-called partial-birth abortion in its 2000 decision Stenberg v. Carhart . While nominally about the constitutionality of a parental notification law, the current case has potentially far-reaching consequences because it presents the opportunity for the court to adopt the reasoning about notifying husbands about abortion that Supreme Court nominee Samuel Alito used in his dissent in Planned Parenthood v. Casey . Some analysts claim Alito's abortion jurisprudence would dramatically change the Supreme Court's approach to the issue. But Ayotte shows how much of an effect Alito could have on restrictions on reproductive freedom even if Roe v. Wade is formally upheld. Ayotte could make it almost impossible for many poor women in this country to obtain safe abortions. Ayotte contains two potential land mines that would...

Chipping Away

Even if abortion hadn't been a key issue in nearly every Supreme Court nomination since Roe v. Wade was decided in 1973, Samuel Alito would have to expect it to be the centerpiece of his nomination fight. Since Robert Bork's defeat, the trend among Republican nominees has been toward people with no recorded involvement with abortion issues. Alito, on the other hand, wrote a solo dissent in Planned Parenthood v. Casey , the 1992 case that reaffirmed Roe and remains the controlling case when the courts asses the constitutionality of abortion regulations. His views on at least one piece of the abortion debate are thus quite clear -- and provide some troubling information for supporters of abortion rights about how he is likely to vote in subsequent abortion cases if confirmed by the Senate. At the time of Casey , abortion law was in considerable flux, and the justices of the 3rd U.S. Circuit Court of Appeals thought that the controlling opinions were two concurrences by Justice Sandra...

Judicial Review And Democracy II: The Legislative Source of Judicial Power

In my last post , I noted that the idea that courts are “counter-majoritarian” is not a useful basis for a critique of the courts. This is not to say, however, that there are no potential objections to judicial review from the standpoint of democratic theory. The first set of objections is strictly normative. On can concede—like John Hart Ely did—that Roe is not “counter-majoritarian” and still believe it was incorrectly decided, and the same is true for any other case. Jeremy Waldron’s objections to judicial review—which I actually find problematic in a number of respects—fall into this category. Allow me bracket those type of objections for the time being; I don't have any grand theory of constitutional interpretation to offer anyway. Instead, I’d like to focus on something else: the fact that courts and legislatures are not always locked in a zero-sum struggle for power, as most critiques of judicial review assume. I want to suggest, rather, that the courts and legislatures are in...

Takings and the Public Interest

In a case that has split progressive bloggers--with such luminaries as Atrios and Belle Waring taking the side of the dissenters today--the Supreme Court has ruled in Kelo v. New London that New London's condemnation of property for private economic development was a constitutional taking. This was expected after the oral argument, although the 5-4 decision was closer than many court watchers had anticipated. For reasons I have discussed previously , I believe this was a good decision. The key passage from Stevens' opinion is this: "[t]he disposition of this case therefore turns on the question whether the City's development plan serves a 'public purpose.' Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field." I am sympathetic to the defendants, who were forced to sell their property for what seems to me like a boondoggle, and I understand what O'Connor means when she suggests that "for...

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