Courting Disaster: Update 2001-2002

Introduction

The Supreme Court’s 2001-2002 Term was a troubling one for civil rights and civil liberties. In cases concerning school vouchers and church-state separation, the rights of disabled Americans, “federalism” and states’ rights, and the privacy rights of students, the Court significantly restricted civil and constitutional rights and federal authority. The Court decided a number of these cases by narrow 5-4 rulings in which Justices Scalia and Thomas played a critical role in helping push the Court in a restrictive direction.

In addition, the Court rejected by narrow margins a number of efforts by Scalia and Thomas to push the Court in an even more dangerous direction with respect to such issues as the ability of government to protect the environment, civil rights, and patients’ rights. Although this report discusses the Court’s non-criminal cases, adding more Justices like Scalia or Thomas to the Court would have a substantial impact on criminal law as well, as illustrated by the Court’s 6-3 decision in Atkins v. Virginia, 2002 WL 1338045 (2002), that executing the mentally retarded is unconstitutional, contrary to the views of Scalia and Thomas.

This Term’s decisions reconfirm that the Supreme Court remains narrowly and deeply divided on a large number of issues important to the rights of all Americans. This highlights the importance of who is nominated to fill the next vacancy on the Court, which has not seen a vacancy since 1994, the longest period in American history since 1823. In 2000, then-presidential-candidate George W. Bush stated that, if elected, he would seek to appoint Justices like Scalia and Thomas in filling Supreme Court vacancies. The Court’s decisions in 2001-2002 reinforce the conclusion of People For the American Way Foundation two years ago: adding more justices like Scalia and Thomas to the Court would be courting disaster for the rights of all Americans. As documented in the original Courting Disaster, the result could be to overturn more than 100 Supreme Court precedents protecting civil and constitutional rights.

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