Because Brown v. Board is still hailed as a high-water mark of Supreme Court jurisprudence, even though its central holding has been reduced to nothing more than an aspiration we think we still live up to just because the Court once said so.
As Charlie Pierce points out, according to the Fifth Circuit some Constitutionally protected actions are less protected than others because it just doesn't affect enough people:
The three-judge panel agreed with the state's lawyers that there was insufficient evidence that a "large fraction" of women seeking abortions would face an unconstitutional burden because of the surgical-center requirements and clinic closings. They wrote that the data provided by one of the plaintiffs' experts, Dr. Daniel Grossman, suggested that about one out of six Texas women seeking an abortion would live more than 150 miles from the nearest clinic if the surgical-center rules went into effect. "This is nowhere near a ‘large fraction,' " the panel wrote.So if a law restricting speech or allowing soldiers to quarter in your home only affects about 15% of the populace, it's still constitutional.
As I've mentioned before, I used to work for Lee Yeakel. We didn't agree on much when it came to politics, and he was no fan of Roe v. Wade. But I never imagined I'd see the day when Lee was the champion of the people and could almost be called a liberal icon:
In an unusual move, the judge granted the abortion providers who sued the state broader relief than they had requested. Lawyers for abortion facilities had asked him to strike down the requirement as it applied to two clinics, in El Paso and McAllen. But Judge Yeakel ruled the admitting-privileges requirement and the surgical-center standards, operating together, put undue burdens on women statewide, and created "a brutally effective system of abortion regulation that reduces access to abortion clinics."
Strange days indeed. I suppose if we reduce access to legal counsel in criminal cases by denying it to one in six defendants, that would be okay, too.
I'll retire to Bedlam.....