Supreme Court overturns a law. What happens to the law?

Factual Questions
1

Assume the US Supreme Court overturns a law (as recently happened with the Texas sodomy law which is what brought this to mind). What happens to the law they overturned and what happens to other states with similar laws?

Does the law the Supreme Court directly dealt with get banished from the books on the spot? Does (in this case Texas) have to actually repeal the law? Does the law just sit there till dealt with but is unenforced?

What about other states that have similar laws that almost certainly fall under the umbrella of the USSC’s ruling? Do they go back and revise or repeal the law? Do they (or can they) continue to enforce it and make someone jump through the legal hoops to get a court to officially say that particular state’s laws are no good in light if the USSC’s decision? I imagine a state may say that it felt its particular law was ‘different’ enough from the law the USSC ruled on that it should be taken individually. Is there anything to ‘encourage’ a state to amend its laws and not clog the judicial system or, more importantly, harrass its citizens if there is very good reason for the state to believe a particular law on its books is no good any longer?

A lot of questions I know but I’m trying to cover many possibilities.

2

The specific law overturned no longer exists. It is not a law. It cannot be enforced. Anybody awaiting legal action in reference to that law is no longer involved in a legal action. All such actions would be dismissed.

As for other states, that all depends on just how broadly the Supreme Court words a decision and how much individual states want to claim that their particular laws are sufficiently different. In theory, every single state might try to enforce their own laws as sufficiently different, requiring 50 Supreme Court cases every time. The reality would be that the Court would eventually say “ANY law that says that act X is illegal is and will always be Unconstitutional until we say otherwise.” That’s pretty blanket language.

3

The law stays on the books until the legislature changes it. There are lots of unconstitutional laws on the books.

I have a case right now like this: My client is a foreign corporation that has filed suit in a state court in the United States. There is a law on the books that says foreign corporations must file a tax form by a certain time or lose their right to sue in the state. My adversary is attempting to make use of this law to get the suit dismissed. However, the state supreme court has held that the law is unconstitutional as written and that parties can file the form any time they wish. If my adversary attempts to have the case dismissed, I will cite the supreme court decision and (hopefully) his application will be denied.

Frequently, legislatures will amend laws that have been declared unconstitutional. To take another shot or to codify what the courts have said.

4

This is true. What usually happens is there are texts added to the lawbooks explaining the invalidity due to the court decision. This saves the state legislature the time it takes to debate changing the law. In fact, just because a law is ruled unconstitutional doesn’t mean a state legislature is going to vote to repeal it off the books! Anti-abortion laws are still on the books in some states.

5

And, should SCOTUS later reverse itself, the law on the books can then immediately be enforced again without the legislature having to pass it again.

6

It goes like this. If the District Court states that a law or administrative regulation is not valid (for any reason, unconstitutional or beyond the scope of the administration’s authority) that decision is binding only in that case. If it is appealed to a Circuit Court, the Circuit Court’s decision is binding for the whole Circuit. If it is appealed to SCOTUS, which decides to hear it by certiorari or must hear it by constitutional mandate, the decision of SCOTUS is binding for the whole nation.

This is one reason why an administration (such as the Social Security Administration) will not appeal from a decision by a District Court, or if it does, from a decision by a Circuit Court. The Administration may feel the court is in error but the case is not a good one to appeal. If the appellate court upholds the lower court, the Administration will have to follow the mandates of that decision in a broader geographical area.

Administrative regulations are supposed to have national coverage; however, often an administration will apply different criteria to one Circuit in obedience to a decision in that Circuit, the administration feeling that it is not worth the risk to appeal due to the facts in that case.

The majority of SCOTUS decided that sodomy by two consenting adults in private is of a quasi-fundamental right (the best I can garner - but that’s another subject) prohibited by a state to proscribe. That’s the law of the land. If another state (and I believe the number is now 14, but I’m not going to check it) has a law that proscribes such action, it is an unenforceable law.

7

This is sort of what I’m seeking an answer to.

If a law is still on the books, regardless of what the SCOTUS has said about it, I assume the police in that jurisdiction are still bound to enforce it. It is not up to the police to decide what to enforce and not to enforce (theoretically…in practice I know they do so regularly).

So…if a repeal of the law isn’t automatic can citizens still be harassed by the law and made to go through the motions in court of getting it tossed out on its ear?

I’m visualizing either police or a DA who make a career of pandering to the religious right. Is there anything…threat of a lawsuit for wrongful arrest or some such thing…that would motivate them to take the hint the SCOTUS sent? Put in more plain terminaology…if someone wants to be a dick about it is there anything stopping them?

Also, I am still unclear what happens to a law the SCOTUS has deemed unconstitutional. In the case of Texas and the sodomy law it is clear the SCOTUS squashed it. Does the Texas state legislature have to do anything to officially repeal the law or the next time the laws of the state of Texas are published do they autmatically drop it from the list? I realize the law is no good in any way shape or form in the state of Texas…I’m just curious how it actually gets officially removed from the books (or if it actually stays and is just deemed unenforceable).

8

In Ontario, R. v. M. (C.) (1995), 23 O.R. (3d) 629 (Ont. C.A.) tossed out the law against minors having anal sex on the constitutional grounds of age and gender discrimination.

Lucas v. Toronto Police Service Board (2001) 54 O.R. (3d) 715 (Ont. Div. Ct.) decided that Parliament cannot be ordered to rescind the struck down law, so there it sits, on the books, but not enforceable. This case occurred because the police chose to arrest a fellow despite their knowing that the law had been struck down.

Thus in Ontario, if a law is struck down by the court, but the appropriate legislature does not remove it from the books, then yes, people can be, and on very rare occasions are, arrested and hauled through the courts, only to have the cases against them tossed out because of the law having previously been struck down.

9

I don’t think so. I’m not sure what the mechanism is, but if a rogue DA started prosecuting people under a law that had been declared unconstitutional, IMHO the system would find a way to slap him (or her) down.

10

Presumably if a DA started prosecuting people routinely for violating a law that has been declared unconstitutional, a judge would get wind of the situation and issue contempt citations.

IANAL, but that also seems like a classic case of “malicious prosecution”, which is a civil offense. At least it was when I was on jury duty.

11

Here in Idaho (one of the states with a sodomy law; it covers both sexual orientations, though), we had to amend our death penalty clause in the state code to reflect the SCOTUS decision saying that the mentally retarded are unfit to stand trial. The law was amended, and the discussion in the Capitol was that via Supreme Court mandate we had to change the law to align the ISC with the constitution of both the state and the nation. However: there are some laws (like one that says we have to read from the Bible at school every Friday) that are not enforced, and if they are, would be struck down. So a law can be unconstitutional and sit on the books, but once somebody is arrested in violation of it it’s struck down. However, in cases like Lawrence v. Texas, the Texas sodomy law was struck down by the court and ceased to be a law. If I’m arrested for receiving oral sex in Idaho, I can tell the judge that the law was found unconstitutional by the Supreme Court and he’ll probably throw out the case and declare the law unconstitutional. SCOTUS’s decision only applied to the Texas law.

12

This very question was asked on NPR yesterday, and their legal expert described it this way:

The law remains on the books, but it is null and void.

(He didn’t go into the specific mechanism. Since the earliest days of the Constitutional government, the Supreme Court has traditionally been seen to have the right to decide the constitutionality of any law. Although this is not specifically spelled out in the Constitution, few have ever seriously challenged SCOTUS’ authority in this area. If SCOTUS declares a law unconstitutional, that unconstitutionality, in effect, becomes the law of the Federal Government, which is supreme in the land, rendering null and void any other state or local law that violates that unconstitutionality.)

SCOTUS has declared that Texas did not have the right to pass its law against “sodomy”. If any Texas cop tries to arrest someone in violation of the sodomy law, a smart DA will drop the case immediately. A dumb one will try to push on, in which case the defense will immediately cite this current decision (whose text specifically reverses an opposing SCOTUS decision of 17 years ago), and sue the State’s pants off for malicious prosecution. A smart judge will obviously find in favor of the defense.

By extension, if anyone is arrested for violation of a similar law in another state, THEIR defense lawyer will initiate similar action if prosecution is attempted. Which renders all such laws in all states null and void.

Of course, what the NPR lawyer failed to mention is that you might not get a smart judge, in which case you’d have to appeal. If your luck ran out, and you ping-ponged your way up through opposing decisions in the appelate system, you might end up right back in front of the Supreme Court, which is exactly what happened to Texas in this current case. Confident that the 1986 decision was solid, Texas wound up losing this time around with a different Court.

The same thing could, of course, happen again.

The State legislature could also, at any time, decide to repeal the law to make things clear.

OR, the US could decide to amend the Constitution to allow whatever kind of law SCOTUS had decided against, rendering the Court’s decision moot.

13

Whack-a, I think this is a great question. The answers have been very informative too. IANAL so I have nothing really to add, except a little speculation that might round out the discussion a bit.

My guess is that cases that get to the SCOTUS are argued (&/or backed) by large, invested groups on both sides (the ACLU, the NRA, NOW, the NAACP, etc.). If one of the states that had a law similar to the voided one tried to enforce their law, I’ll bet you lawyers from the victorious groups would sweep down on that state faster than the defendant could dial his/her one jailhouse phonecall. If these advocacy groups go to all the trouble of arguing and winning in the SCOTUS, I think they’re going to want to make sure the ruling sticks.