Potential Solution to "Overrule" Problem A possible solution to the "overrule" wording problem is to require the Aff to overrule a specific test. Instead of simply requiring the Aff to "overrule" a Supreme Court decision (which may result in overruling on jurisdictional or other procedural grounds that fail to get at the heart of the decision), a resolution requiring the Aff to overrule a test would ensure that debates center on the heart of the cases in question.

The resolution might read:

The USSC should overrule one of the following tests previously announced by the Court:

the Lemon test from Lemon v. Kurtzman (establishment clause)
the undue burden test from Casey v. Planned Parenthood (abortion)
the reasonable suspicion test from Terry v. Ohio (4th amendment stops)
the McDonnell Douglas test from McDonnell Douglas v. Green (employment discrimination)
the Central Hudson test from Central Hudson Gas & Elec. v. Pub. Serv. Comm'n (commercial speech)
the Boerne test for "appropriate legislation" in Boerne v. Flores (Congressional power)
the Matthews test for procedural due process from Matthews v. Edridge (due process)
etc.
etc.

The notion of "overruling a test" appears frequently in the literature:

"On appeal, the Sixth Circuit was also obligated to follow the Lemon test, until the Supreme Court overrules or abandons it." 42 Williamette Law Review 99 (2006)

"Faced with precedent requiring a "results" test for determining discriminatory practices based on a history of discrimination, in 1980 the Supreme Court, in Mobile v. Bolden, chose to overrule that test and instead require plaintiffs to show the presence of intentional discrimination in order to go forward with their claims of what is now called "vote dilution." In response, in 1982 Congress amended the Voting Rights Act, rendering it unnecessary for plaintiffs to make a showing of intentional discrimination." 14 George Mason Univ. Civil Rights J. 27 (2004)

"In 1987, the Supreme Court explicitly overruled O'Callahan in Solorio v. United States, stating that "on re-examination of O'Callahan, we have decided that the service connection test announced in that decision should be abandoned." In overruling the O'Callahan decision, the Solorio majority also based its decision on historical practice, asserting that "the O'Callahan Court's representation of ... history ... is less than accurate."" 186 Military Law Review 1 (2005)

"[T]he Supreme Court has effectively, if not explicitly, overruled use of the pervasively sectarian test." Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259, 1269 (S.D. Cal. 2003)

"Justice Kennedy, concurring and dissenting in County of Allegheny v. ACLU, argued that: Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact "establishes a [state] religion or religious faith, or tends to do so." Kennedy applied his coercion analysis in Lee v. Weisman, where the Court held a graduation benediction unconstitutional on establishment grounds. While Justice Kennedy utilized his coercion test as a rationale; Weisman did not overrule the Lemon test." 58 Vanderbilt Law Rev 555 (2005)

"The Supreme Court, while admitting that the Lemon test is "useful" in Establishment Clause cases, has "emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area." In most relevant cases, however, the Supreme Court has applied the Lemon test. Although there is authority indicating that the Supreme Court has modified the Lemon test by incorporating the entanglement prong into the effect prong and thereby creating essentially a two-prong test, lower courts have continued to apply *69 the three-pronged Lemon test as it was originally formulated. In 2002, the Sixth Circuit acknowledged that "[w]hile [it has] recognized that individual Supreme Court justices have expressed reservations regarding the Lemon test, [it is] an intermediate federal court and [is] bound to follow [the Lemon] test until the Supreme Court explicitly overrules or abandons it." Thus, until the Supreme Court clearly overrules the Lemon test, it remains the law of the land. Therefore, every analysis of potential Establishment Clause violations begins with the three prongs of the Lemon test." 22 Thomas M. Cooley Law Review 55 (2005) 

posted by Lindsay at 5/18/2006 03:39:00 PM ¶