High Stakes for the Court and the Constitution

Many Supreme Court decisions upholding important constitutional principles such as equality under the law and equal opportunity were decided with only one or two vote majorities. New appointees in the mold of Justices Scalia and Thomas could overturn numerous Supreme Court rulings that enjoy broad popular support, including cases affirming the right to privacy, allowing affirmative action in higher education, protecting the rights of individuals who are members of HMOs, and upholding the Environmental Protection Agency’s authority to take action to reduce air pollution when a state fails to act. In fact, People For the American Way Foundation’s recently updated Courting Disaster report documents that a Court majority sharing the Scalia and Thomas judicial philosophies could overturn more than 100 Supreme Court precedents.

The Court under Rehnquist has been markedly activist, striking down in whole or in part more congressionally enacted statutes than any previous Supreme Court in our history, including laws prohibiting states from interfering with religious freedom or discriminating against people with disabilities, as well as laws banning possession of handguns near schools and providing remedies to prevent violence against women. The appointment of more activist Justices in the mold of Scalia and Thomas could undermine the ability of Congress to act to protect clean air and water or to address other issues of national importance, such as poverty and the rights of workers and consumers.

No matter which justice – or justices – resigns, the new appointment will be of enormous significance. The new justice will play an important role in defining our constitutional rights and liberties for decades, shaping decisions that could affect for generations how America works and how Americans live: Will the courts abandon their role in preserving Americans’ right to privacy and strip women of the constitutional right to make their own family planning and reproductive choices? Will Congress lose the power to protect Americans’ civil rights from abuses by state governments and others? Will universities be prohibited from engaging in affirmative action to promote racial diversity? Will corporations gain excess political and economic power? Will the Supreme Court further undermine the federal government’s ability to safeguard the air we breathe and the water we drink?

Conclusion

President Bush will almost certainly have more than one opportunity to nominate a Supreme Court justice over the next several years. The President is being pushed by advocates within and outside of his administration for nominees who will use a seat on the Supreme Court to advance a legal and political agenda to turn back the clock on decades of legal precedents and the fundamental rights and liberties they protect. A nominee with a judicial philosophy that threatens hard-won rights and legal protections would generate tremendous opposition.

Political battles over Supreme Court nominations end in the Senate, but they begin in the White House. The choice between controversy and consensus is the President’s. If he selects a consensus candidate like Sandra Day O’Connor, he will avoid controversy and enhance the legitimacy of the Supreme Court. But if instead President Bush follows the demands of James Dobson, Pat Robertson, and Jerry Falwell, and nominates a far-right ideologue, he will provoke yet another divisive confirmation battle.

Neither a contentious confirmation battle nor the confirmation of far-right judges would be good for the country or the Constitution.

Notes

1 Hatch, Orrin G. Square Peg: Confessions of a Citizen Senator. New York: Basic Books, 2002. p 180

2 Focus on the Family Action Newsletter, April 2005. http://www.focusaction.org/articles/A0000066.cfm

3 Milbank, Dana. “And the Verdict on Justice Kennedy Is: Guilty.” Washington Post, 4/9/2005 http://www.washingtonpost.com/wp-dyn/articles/A38308-2005Apr8.html

4 Goldberg, Michelle. “In Theocracy They Trust,” Salon.com 4/11/2005 from http://www.truthout.org/docs_2005/041105F.shtml

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