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Culture War Roundup for the week of December 12, 2022

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Anyone want to talk about test cases? Rosa Parks' name has come up again to remind us that there is a group of people who didn't know the incident was staged by the NAACP as a way to put segregation on trial. I hope that everyone knows test cases are a thing and I'm a little curious what percentage of the famous judicial cases this would apply to. I guess it tarnishes people's fuzzy feelings about the scrappy individual with pure motives facing off against evil oppression but it doesn't change the facts of the case. Personally I have the impression that the judicial system is skewed against the poor and un-savvy and rewards those who have resources behind them and know how to work the system. So it does seem to the outsider as if everyone could benefit from having an organization behind them to raise attention and mount a strong defense. Rosa Parks may have been one person but her case ended up helping the many not-so-sympathetic individuals who were also victims of the unjust system. So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

Griswold v Connecticut. Estelle Griswold was a planned parenthood executive who collaborated with local law enforcement to get charged on the Comstock law in Connecticut. That was enough to get past the ripeness issue that resulted in dismissing Poe v Ullman and Tileston v Ullman. Justice Harlan had already signaled the outcome of a successful challenge in his dissent on Poe, so it was just a matter of creating the set of facts needed.

This sort of gamesmanship is almost de rigueur in any sort of specific-issue appellate practice. I don’t really take issue with the practice because courts do not rule prospectively (unless they want to.) If a law becomes absurd under a set of facts that can be reasonably passed off as naturally occurring, it deserves to be challenged.