Courting Disaster 2005

A report by People For the American Way Foundation

What would the actual impact be on Americans' rights and freedoms if the views of Antonin Scalia and Clarence Thomas become the majority views on the Supreme Court?

This report examines Scalia's and Thomas's opinions to answer that question, focusing on cases in which Scalia and Thomas have been in the minority on the Court, and the answer is nothing short of chilling.

Introduction

At key times in American history, the U.S. Supreme Court has played a critical role in advancing social justice. Brown v. Board of Education prohibited racially segregated public schools. Other civil rights rulings meant victory for the students sitting in at segregated lunch counters and defeat for jurisdictions using the poll tax and other devices to keep minorities away from the ballot box. Griswold v. Connecticut and Roe v. Wade recognized a constitutional right to privacy and protected a woman's right to make reproductive decisions based on her own life, health and conscience. The 2003 decision in Lawrence v. Texas recognized that the government should not be prying into individuals' bedrooms or policing the private sexual behavior of consenting adults. In 2003, the Court also confirmed in Grutter v. Bollinger that narrowly tailored affirmative action is permissible to promote educational diversity in our nation's colleges and universities.

At other times, the Supreme Court has impeded the cause of justice. The infamous Dred Scott decision denied the humanity of African Americans. From the 1890s through the 1930s, the Court erected barriers to efforts to end child labor and protect workers' rights.

The next appointments to the Supreme Court could well decide whether the Court will facilitate greater equality or turn back the clock on the social justice gains of the past 70 years. The current U.S. Supreme Court has already produced troubling results. Among the most disturbing is the Court majority's embrace of a new "states' rights" theory that is undermining the federal government's ability to protect all citizens' fundamental constitutional and other rights against abuses by the states. Yet, the Court's majority has not fully embraced the legal theories of Justices Antonin Scalia and Clarence Thomas, who represent the views of the far-right wing on the Court.

That is why leaders of the Radical Right political movement and their allies remain so focused on the Supreme Court. Their goal is to ensure that the President nominates and the Senate confirms Supreme Court justices who share their view of the Constitution. If they are successful, they could redefine American law for a generation or more. Hanging in the balance are the right to privacy, reproductive choice, civil rights, separation of church and state, environmental protection, and worker and consumer rights. The far right hopes to push the Court further to the right and to take ideological control of the federal courts, particularly the Supreme Court.

Given the age and health of the current justices, President Bush is likely have the chance to nominate two or three, and maybe even four justices. With the Court so closely divided on important constitutional issues, even one new far-right justice would be very damaging. Three or four more justices who share Scalia's and Thomas' extreme views would spell disaster.

During the past half-century, the Supreme Court protected individual rights and liberties in many critical areas: it held that a woman has a fundamental right to a safe, legal abortion; it struck down many practices related to elections and the political process that denied minorities the right to full, equal participation in our democracy; it struck down the pernicious de jure racial segregation in our nation's public schools; it protected government employees from being fired or demoted for their political party affiliation; and it ruled that poor parents cannot be denied the same opportunity to appeal as rich parents in cases to terminate their parental rights.

Yet Justices Scalia and Thomas have used their written opinions to criticize these landmark rulings and to argue that most of these and many other decisions should be reversed, in whole or in part. If a majority of the Court came to share these views, it would overturn much of our nation's progress toward full equality and would place many injustices beyond remedy by any courts or Congress for decades to come.

What would the actual impact be on Americans' rights and freedoms if the views of Antonin Scalia and Clarence Thomas become the majority views on the Court? To answer that question, this report examines Scalia's and Thomas' opinions, focusing on cases in which they have been in the minority on the Court. The answer is nothing short of chilling.

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