At the close of its 2000-01 term, the Supreme Court remains narrowly divided on a number of issues that are extremely important to the rights of all Americans. Out of 87 decisions by the Court this term, more than 33% (30) were decided by 5-4 or 6-3 margins. Many of these narrow rulings concerned fundamental questions such as civil rights, privacy, federalism and “states’ rights,” religious liberty, freedom of expression, immigrants’ rights and campaign finance.
The Court’s rulings this term reinforce the central conclusion reached by People For the American Way Foundation in its Courting Disaster report last year: the already very conservative Supreme Court is just one or two new justices away from curtailing or abolishing fundamental rights that millions of Americans take for granted. The age of the current justices and the unusually long interval of more than seven years since the last Court vacancy make it almost certain that President George W. Bush will have the opportunity to make more than one Supreme Court nomination. If moderate nominees are chosen and confirmed, key precedents protecting Americans’ rights and liberties are more likely to be preserved and some of the excesses of the current Court with respect to such issues as federalism can be mitigated. If justices in the mold of Antonin Scalia and Clarence Thomas are nominated to the Court, which President Bush has indicated is his intention, America would literally be courting disaster.
This report updates last year’s Courting Disaster by examining the decisions issued by the Court since late May 2000, when that report was published, focusing on the Court’s rulings this term and including several post-publication rulings that came at the very end of the 1999-2000 term. It reviews the Court’s decisions in the areas of civil rights and discrimination; federalism and congressional authority; privacy rights and reproductive freedom; religious liberty and church-state separation; free expression; immigrants’ rights; environmental and worker protection; campaign finance; and access to justice. It focuses particularly on the closely divided rulings in which the addition to the Court of one or two more justices like Scalia and Thomas would seriously endanger Americans’ rights and freedoms.