Feinstein: [Several questions setting contrary view on Ricci] Asks confusing question about precedents on “health” exception from abortion regulations.
SS: In Carhart [which one?], Court didn’t reject prior precedents.
DF: Does health of woman still exist? [Garbled question]
SS: Part of precedent.
DF: In two cases in 2006, Justice Scalia sharply criticized colleagues for overruling precedent w/o acknowledging that they were doing so. When the Court decides to overrule a previous decision, is it important that it does so outright? [DF seems not to know that the Court didn’t do so in Brown v. Board of Education.]
SS: Re-examination of precedent should be very, very cautious. Courts look to variety of factors, applying each in a balance. Development of law is step by step. [Not responsive]
DF: On executive power and national security: President Bush used signing statements to indicate sections of bills that he would disregard. Does Constitution authorize President not to follow parts of laws that he believes are unconstitutional?
SS: Broad question. Cites Jackson’s concurrence in Youngstown case.
DF: How should courts balance executive branch’s expertise with judiciary’s obligation to enforce Constitution? Discusses Doe v. Mukasey on national security letters.
SS: Discusses Doe v. Mukasey.
DF: Do you agree with the Court’s narrowing of Congress’s Commerce Clause power?
SS: You’re asking me to prejudge an issue, so I can’t answer in a broad statement. Court has looked to wide variety of factors.
DF: How about Lopez case on gun-free zone?
SS: Court examined a wide variety of factors. In Raich, Court did upheld criminal prohibition of non-economic crime.
DF: Restriction of commerce-clause power could affect environmental legislation.