What Was Missing From the Debate: Even More Reasons the Supreme Court Is a Crucial Election Issue

This piece originally appeared on the Huffington Post.

In last night’s presidential debate, the candidates discussed several important issues where their choices for the Supreme Court will be critical for Americans’ rights. Whether Hillary Clinton or Donald Trump is elected will decide whether Roe v. Wade is overruled, whether the Court’s historic Obergefell decision on marriage equality is thrown out by a Trump Court, and whether Congress and state legislatures can enact common-sense laws on gun safety and money in politics.

But there are a number of other issues the Supreme Court rules on that underscore why it is crucial that a President Clinton, backed by a Democratic Senate, selects nominees to fill the up-to-four Court vacancies that are likely in the next four years. Specifically:

  • Corporations vs consumers: A Trump Supreme Court would further stack the deck against consumers and in favor of large corporations in the marketplace. Trump justices would make it even harder to bring class actions, often the only way that consumers can effectively seek justice against big corporations. A Trump Supreme Court would almost certainly reverse a recent 5-4 decision or find some other way to rule that the Affordable Care Act is unconstitutional, harming millions of Americans. And a Trump Supreme Court would likely undermine or reverse narrow rulings that have allowed consumer suits against deceptive cigarette labelling in state court and state attorney general action against big banks.
  • Workers’ rights: The current Supreme Court split 4-4 in a case where anti-labor advocates were pushing the Court to overrule an important precedent and eliminate “fair share” fees from non-union members that are crucial for unions to operate. A Trump Supreme Court would break the tie and deal a devastating blow to workers’ ability to organize and operate unions. A Trump Court could also make things even worse than the Roberts Court for workers protected by federal law. One of the judges on Trump’s list of possible Supreme Court justices even tried to rule that a woman who reported sexual harassment on the job could not take legal action when her employer fired her in apparent retaliation.
  • Protecting the environment: Although a President Trump himself is likely to do significant damage to environmental protection efforts, a Trump Supreme Court would do even more. Several important cases concerning the validity of federal rules protecting against mercury and other toxic air pollution and against harmful power plant emissions are pending right now in federal appellate court. A Trump Supreme Court would likely strike down such rules.  A Trump Supreme Court is also likely to remove wetlands almost completely from protection under the Clean Water Act and to make it easier to challenge environmental protection efforts at the federal, state, and local level.
  • Civil and voting rights: A Trump Supreme Court would almost certainly approve restrictive state voter ID and other voting laws that lower courts have found to improperly limit minority voting rights in North Carolina and elsewhere. In fact, one more right-wing justice on the Court would have allowed the discriminatory North Carolina law to take effect in this November’s election. A Trump Supreme Court would also likely approve state redistricting plans like those that have been narrowly struck down as discriminatory, and make it harder for states to undertake nonpartisan redistricting. A Trump Supreme Court could well reverse a recent 5-4 Court ruling and make it impossible to bring housing discrimination lawsuits based on the discriminatory effects of landlord and other practices.
  • Immigration:  The candidates’ discussion last night of their clear differences on immigration policy underlines the importance of who will select Supreme Court justices.  A Trump Supreme Court is likely to uphold a President Trump’s radical immigration policies, particularly if supported by a Republican Congress. Justices like Thomas, Scalia, and Alito have consistently voted to uphold restrictive laws and presidential actions on immigration and on foreign citizens even when the Court majority strikes them down. Adding more right-wing justices would tip the balance decisively in Trump’s favor. So a Trump Supreme Court would likely approve orders by a President Trump mandating mass deportations, imposing ideological litmus tests on immigrants, banning immigration by all Muslims or people from selected countries, and building a wall between the U.S. and Mexico.   

These examples and more are likely products of a Supreme Court to which a President Trump is able to nominate even one or two new justices. With three or more nominations considered likely in the next president’s first term, the consequences to all Americans would be disastrous. And in light of recent threats by Republicans like John McCain to block all Clinton nominees to the High Court, it is crucial that Americans also vote for a Democratic Senate.