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I always assume that anyone unironically quoting Schenck agrees with its conclusion that distributing anti-draft pamphlets is akin to shouting fire in a crowded theater. Which seems like a downright fascist perspective, but what do I know?
Most of them probably have no idea about the case beyond "fire in a crowded theater" and "clear and present danger". But someone did mention the case by name, and as far as I can tell given the limitations of the Post's execrable (technically) comment section, nobody pointed out it's no longer good law since Brandenburg v. Ohio.
And I'm sure they'd agree that distributing anti-draft pamphlets about the Vietnam War or the Gulf Wars (yeah, I know, there wasn't a draft) would be fine but it's absolute treason and not protected to do so about WWII or the Ukranian War (again, I know there isn't a draft in the US).
I mean, with the current Supreme Court, who’s to say Brandenburg v. Ohio isn’t next on the chopping block? Brandenburg is just one of a laundry list of cases from that time period which changed longstanding precedent. Those cases are being rolled back one by one as we speak.
Aside from Roe, can you name another? I believe there are two members of the Supreme Court (Thomas and Barrett) who might seriously consider overturning Brandenburg, but that's it.
Lemon v. Kurtzman overturned by Kennedy v. Bremerton School District.
Abood v. Detroit Board of Education overturned by Janus v. AFSCME.
Regents of the University of California v. Bakke overturned by Students for Fair Admissions v. Harvard
Not necessarily from the same era, but NYSRPA v. Bruen basically overturned every 2nd amendment case in history besides Heller
Wikipedia claims that; the opinion of the court claims Lemon had already been effectively set aside.
SFFA overturned neither Bakke (which was a mess of a set of opinions, and in fact the ruling was in favor of Bakke) nor even the later Grutter which endorsed Powell's opinion in Bakke. The ruling was that Harvard and UNCs programs were impermissible under Grutter.
I only wish it overturned US v. Miller.
Yeah, by previous Roberts court opinions like American Legion v. American Humanist Association
If your take is, "actually affirmative action has been illegal the whole time," I guess you might be right, but that's kind of missing the point.
It did. The two opinions are fundamentally irreconcilable. Nobody knows how much of the NFA is constitutional at the moment.
American Humanist also claims Lemon had already been set aside.
My point is that the lower courts had effectively overruled the Supreme Court by turning a blind eye to blatant violations of the restrictions on affirmative action programs set out by Grutter, and SFFA was therefore not changing precedent by re-affirming those restrictions.
Enough of Bruen will be carved out to allow all of the NFA to stand. Except on abortion, that's how the Roberts court works; make apparently major decisions which change nothing.
Granting cert in US v Rahimi looks all downside on that front especially given the facts of the case and the plaintiff. And that's not even getting close to the NFA section of 18 USC 922.
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