At the fantastic Seelbach Hilton in Louisville, Kentucky (about 4 blocks from where I clerked–a great hotel with an awesome restaurant and bar), Justice John Paul Stevens continued chugging along on his rehabilitation tour. The text of his address is here.
First, Stevens told us that Citizens United was wrongly decided–this would be breaking news, if it wasn’t the 429th time he told since he retired.
As I explained in the first portion of my long dissent in the Citizens United case three years ago, the application of the Brandeis approach to constitutional adjudication would have avoided the dramatic changes in the law produced by that decision. I remain persuaded that the case was wrongly decided and that it has done more harm than good.
Second, there is that pesky myth about the 11th Amendment:
A myth about the adoption of the 11th Amendment has been repeated over and over again in cases extolling and expanding the doctrine of sovereign immunity
Third, the myth that Slaughter-House was incorrectly decided!!?!?
A myth that received the Court’s attention during the debate about the application of the Second Amendment to the City of Chicago’s attempt to regulate the possession of firearms is the myth that the Slaughter-House Cases were incorrectly decided.
The majority opinion in the Slaughter-House Cases written by Justice Miller – who happened to have been a practicing physician for ten years before taking up the study of the law – was clearly correct in upholding the slaughterhouse legislation. In doing so, however, Miller declined to simply rely on the State’s broad police power to protect the public health, and instead endorsed an unfortunately narrow construction of the u “Privileges or Immunities Clause of the 14th Amendment.
Everyone agrees Slaughter-House was wrong. No one joined JPS’s opinion in McDonald. He should really stop.
And, my buddy Mike Sacks thinks there was some jab at Justice O’Connor and Bush v. Gore with his concluding remarks about the disputed Hayes/Tilden election of 1876.
For previous stops on the Rehab tour, see here, and here.
In a related Louisville and SCOTUS history, the injury that gave the Mottley free lifetime passes on the Louisville & Nashville Railroad arose in Louisville. You remember, of course, Louisville & Nashville Railroad Co. v. Mottley? Also, Buchanan v. Warley arose a segregation law enacted in Louisville.
H/T Jess Bravin and Mike Sacks