Much more that Roe will be overturned if Bush gets to appoint his "model" Justice, Clarence Thomas. As is explained by an organization of lawyers called the American Constitution Society.
ACS is a liberal policy group for lawyers, and is currently Clarence Thomas' America a set of articles explaining what America would look like if Clarence Thomas had free reign. The series introduction explains just how radical Justice Thomas is:
Stare decisis is one of the most well established principles in the law. Simply put, it means that courts will not overturn established precedent without an extraordinary reason to do so. It is also a doctrine not held sacred by all nine Justices. In Justice Antonin Scalia's words, Justice Thomas "doesn't believe in stare decisis, period."
Because Justice Thomas does not feel bound by precedent, his opinions often call for substantial shifts in the law. These next two weeks, ACSBlog will explore several of these cases, explaining the history behind Thomas' disfavored doctrines, and suggesting how America would be different should Thomas' vision ever become law. We hope these pieces will be helpful in understanding the man President Bush calls a "model" Supreme Court Justice.
The series seems to be published at the rate of one article a day, and is in its third day. The first piece, entitled "In Clarence Thomas' America, There Is No Negative Commerce Clause" considers the trade destroying consequences of Thomas' jurisprudence:
Over 150 years ago, however, the Supreme Court recognized a "Negative" or "Dormant" Commerce Clause which prevents states from constructing undue burdens to commerce amongst the states. . . . The purpose of this negative voice is to prevent a single state from engaging in "economic protectionism," regulatory measures designed to benefit in-state economic interests at the expense of all other states. Without this Negative Commerce Clause, Wyoming could require all its electric plants to burn only Wyoming coal. Nebraska could tax all semi-trucks not registered in Nebraska. In fact it is the Negative Commerce Clause that prevents Virginia from enacting tariffs against goods imported from Tennessee. Without this limit on state power, one state, acting to advantage its own businesses, could set off a chain reaction of retalitory regulations until the United States were not "united" states in any real sense of the word.
As the piece explains, Thomas would overturn this 150 year old law:
[U]nder Thomas' opinion in Town of Harrison, nothing in the Constitution prevents Virginia from banning the sale of all goods manufactured in Tennessee.
The second piece features a much more familar area of the law, campaign finance reform. As the article explains, Clarence Thomas would declare all campaign finance regulation unconstitutional. It also explains just who would be running America if Clarence Thomas gets his way.
Without this restriction, there is little preventing Philip Morris from donating billions to elect candidates who would block tobacco litigation, or to prevent Wal-Mart from paying similar billions to elect a candidate who would reduce or eliminate the minimum wage.
The third piece strikes gold, explaining how many civil rights laws would be lost, should Thomas have his way.
According to the majority opinion in Morrison, Congress may regulate any act which has a "substantial effect" on interstate commerce, a holding with which only Justice Thomas disagrees. This Commerce Power is perhaps the most comprehensive of all powers granted to Congress, and is essential to many civil rights statues. In Katzenbach v. McClung, for example, the Warren Court upheld a federal prohibition on whites-only lunch counters, holding that such discrimination posed significant burdens on "the interstate flow of food and upon the movement on products generally." Without the Substantial Effects Test, the future of this prohibition is uncertain at best.
You read that right. If Clarence Thomas were in charge, federal laws prohibiting whites-only lunch counters would be declared unconstitutional.
The series promises several more articles, and they seem to be written so that you don't have to be a lawyer to understand the basic points being made.
The next President of the United States gets to appoint 3 Justices, and Justice Scalia already votes with Thomas 93% of the time. If Bush gets to fill the Court with Thomas clones, something he has already promised to do, the changes discussed in the ACS essays likely become law.