A 19th Century Constitution for a 21st Century America

Two far-right justices, Antonin Scalia and Clarence Thomas, have led the destructive revival of a once-discredited “states’ rights” approach to the Constitution. A series of 5-4 decisions have embraced new theories advanced by right-wing legal advocates affiliated with the Federalist Society, weakening federal civil rights protections and declaring other urgent issues off limits to action by the U.S. Congress. But even more important, Scalia and Thomas have staked out in their written dissents and concurring opinions a burning desire to have the Court move much more aggressively to overturn decades of Supreme Court precedent than even the current conservative majority has been willing to do.

With President Bush having campaigned on a pledge to use Scalia and Thomas as his models for Supreme Court nominees, it is crucial that senators, the media, and the American public examine the impact on American law and society of a Supreme Court dominated by justices who are committed to radically restricting the authority of the federal government to protect individual rights and act in pursuit of the common good.

Scalia and Thomas, like many Bush administration officials and judicial nominees, are affiliated with the Federalist Society, which has held seminars on returning the nation’s constitutional framework to a pre-New Deal era. (For more information on the philosophy and extraordinary influence of the Federalist Society on the Bush administration and its judicial selection process, see The Federalist Society: From Obscurity to Power, published by People For the American Way Foundation.)

People For the American Way Foundation’s Courting Disaster, published in 2000, examined the dissenting and concurring opinions written by Scalia and Thomas since they joined the Court. Courting Disaster documented that a Supreme Court with a Scalia-Thomas majority could overturn more than 100 precedents and turn back the clock decades on civil and voting rights, privacy and reproductive choice, religious liberty, environmental protection, consumer and worker safety, and more. Because most cases before the Supreme Court that raise fundamental constitutional questions are now decided by slim majorities, it would take just one or two more appointments to give Scalia and Thomas the power to reshape the Constitution according to their radically reactionary vision.

The result would be a dramatic rollback in legal and social justice gains, and a return to a constitutional framework in which states’ rights and property rights were predominant. A Supreme Court committed to advancing the Scalia-Thomas agenda would not only bring about the reversal of more than half a century of legal and social justice accomplishments, but also a return to a situation America faced in the first third of the 20th Century, when progressive legislation adopted by Congress and signed by the President was repeatedly rejected on constitutional grounds by the Supreme Court. A Court dominated by the states’ rights judicial philosophy could prevent the federal government from taking action on a range of national issues, regardless of who is elected to the White House or Congress.

Courting Disaster and updates on the 2001 and 2002 Supreme Court terms are available here. A comprehensive update of the report will be available shortly after the close of the current term.

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