Americans “Courting Disaster” with Next Supreme Court Justices

At Stake With Next President’s Nominees to High Court: Civil Rights, Privacy, Clean Air & Water, Religious Liberty and Other Rights and Legal Protections

With crucial Supreme Court rulings continuing to be decided by narrow margins, and with a Supreme Court vacancy long overdue, the next President is likely to nominate new Supreme Court justices who will have a huge and long-lasting impact on constitutional rights, liberties and laws, according to a report released today by People For the American Way Foundation. Courting Disaster 2004 documents that additional Supreme Court justices in the mold of current Justices Antonin Scalia and Clarence Thomas would have a devastating impact on civil rights, privacy and reproductive rights, the First Amendment, environmental protection, and much more.

“Courting Disaster makes it clear just how much is at stake with the next Supreme Court justices,” said People For the American Way Foundation President Ralph G. Neas. “Most Americans have no idea how important the Supreme Court is to their daily lives – or that so many basic legal and constitutional protections are hanging by a one- or two-vote thread.”

Neas noted that it has been ten years since the last Supreme Court confirmation, the longest interval between vacancies since 1823. “Over the past half century, there has been on the average one Supreme Court nomination every two years,” Neas said. “We are long overdue. In fact, over the next few years, we could have multiple vacancies, comparable to the four vacancies between 1969 and 1972 and the five between 1986 and 1991. That would define American law for a generation or more.”

Those multiple vacancies would occur in the context of an aggressive right-wing campaign to create a federal judiciary dominated by a legal theory that would overturn many of the legal and social justice gains of the past 70 years. Proponents of a new “federalism” are pushing to have the courts return the nation to a pre-New Deal legal era when states’ rights and property rights were given greater constitutional importance than the protection of individuals’ rights and liberties. On the Supreme Court, the most aggressive promoters of this theory are Justices Scalia and Thomas, who President Bush has said will be his models for future high court nominees.

“The Supreme Court justices appointed by the President elected in November will determine what the law of the land will be for decades,” said Neas.

Courting Disaster documents that more than 100 Supreme Court precedents would be overturned with the addition or one or two additional Scalia-Thomas-minded justices. For example:

  • Privacy: If the Court overturns Roe v. Wade, as Scalia and Thomas are eager to do, it would end a constitutional right to reproductive freedom and could endanger other rights that depend on the right to privacy, including the most intensely personal healthcare decisions ranging from contraception to “living wills” that people create to have their wishes carried out in the event of incapacitation.
  • Civil Rights: In their written opinions, Scalia and Thomas have advocated extreme positions, including an interpretation criticized by four other justices as so “radical” that it would require the overturning or reconsideration of at least 28 Supreme Court decisions holding that the Voting Rights Act of 1965 should be interpreted broadly to prohibit racial discrimination in all aspects of voting. Overruling last year’s Hibbs decision would make it impossible for state employees to obtain effective relief for violations of their rights under the Family and Medical Leave Act. Overturning the 2003 Lawrence decision would allow gay people to be jailed for private sexual activity between consenting adults. Overturning the 2003 Grutter decision would ban affirmative action in higher education.
  • Religious Liberty: Scalia and Thomas would hand the far right a victory they have sought for the past two decades and more – by dismantling the wall between church and state. A Court with just one or two more far right justices would allow government-sponsored prayer at school events and in other settings, and would even allow school district lines to be drawn so as to make one religious sect dominant.
  • Workers’ Rights: A Scalia-Thomas Court would sharply reduce workers’ rights by, for example, eliminating protections against firing government workers for belonging to the wrong political party or for a private comment to a co-worker. A reversal of the Barnhart v. Peabody Coal Co. decision could jeopardize the retirement benefits of up to 10,000 coal industry retirees.
  • Environmental Protection: A Scalia-Thomas majority would make it much more difficult, and in some cases impossible, to protect our natural heritage. Such a court would prevent the federal government from overruling state agencies that fail to effectively stop air or water pollution or from stopping the destruction of endangered species on private land, and in the name of property rights severely limit even temporary government rules to protect the environment.
  • Access to Justice: Reversal of the 2003 Brown v. Legal Foundation of Washington decision would eliminate a key source of funding for legal assistance for the poor. A Scalia-Thomas court would also allow legal services lawyers to be forbidden from raising challenges to welfare laws.

The publication of Courting Disaster 2004 is part of a broader public education campaign around the future of the Supreme Court. Courting Disaster was originally published in May 2000 after a six-month-long examination of all the concurring and dissenting opinions of Antonin Scalia and Clarence Thomas. The newly updated report includes Supreme Court decisions through May 1, 2004. More recently, the Supreme Court’s 5-4 decision in Tennessee v. Lane narrowly protected the right of disabled persons to sue state governments for damages for denying them access to court houses over a vigorous “states’ rights” dissent including Scalia and Thomas.

“The next President and Senate will hold our future in their hands,” said Neas. “No matter who is elected this fall, we will urge the President to nominate only individuals who demonstrate a commitment to preserving privacy and civil rights, protecting individual rights from abuse by corporations or the government, safeguarding the environment, and upholding the social justice progress made over the last 65 years. And we will urge Senators to fulfill their responsibility to be independent defenders of the Constitution.”

Continued Neas, “We want all Americans, regardless of party affiliation, liberal or conservative, to understand what is at stake. We want all Americans to know that many freedoms they take for granted are being eroded, or are protected by fragile one- or two- vote majorities on the Supreme Court. We want them to know that as a country we are courting constitutional disaster.”

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