Urgent Need for a National Dialogue on the Future of the Supreme Court

We have recently been reminded of the extraordinary importance of the Supreme Court’s role in protecting Americans’ constitutional rights and liberties. Yet the Court’s role and its future – specifically the powerful influence that people selected to fill future vacancies will exert – receive relatively little media coverage, even in a hotly contested election year when the issues affected by the Court are more likely to generate public interest.

There is an urgent need for a national dialogue on the future of the Supreme Court.

Consider these facts:

  • It has been 10 years since the confirmation of Justice Stephen Breyer, the longest interval without a vacancy in 181 years, since the administration of James Monroe in 1823. Over the past 50 years, there has been a vacancy on the average of about every two years. We are long overdue.
  • Almost certainly, the President elected this November will have the opportunity to name two or three justices, or possibly more, shaping American law for a generation or more. In fact, we could be entering an era comparable to the four vacancies between 1969 and 1972 and the five between 1986 and 1991.
  • The current Supreme Court is closely divided, with many decisions involving fundamental constitutional issues being decided by 5-4 or 6-3 decisions. The power to name multiple justices will be the power to shape the Court’s approach to issues like privacy, religious liberty, civil rights enforcement, environmental protection, and much more for decades to come.
  • President Bush has cited Justices Antonin Scalia and Clarence Thomas as his models for future Supreme Court nominees. Although they do not always agree with each other, as demonstrated by several important cases at the end of the Court’s Term, they are most often positioned together to the right even of some of their conservative colleagues, aggressively trying to push the Court even further to the right. A recent PFAWF report, Courting Disaster 2004, documents that adding just one or two more justices like Scalia and Thomas to the Court would threaten to overturn more than 100 Supreme Court precedents going back to the New Deal.

Millions of Americans have no idea that so many rights, freedoms, and legal protections are at stake, including the existence of a constitutional right to privacy and reproductive choice, federal enforcement powers to protect individuals’ civil rights, protections against the coercive use of government power and resources to promote particular religious beliefs, the authority of the federal government to protect air and water quality, and many more.

President Bush’s nomination of so many right-wing ideologues to the nation’s appeals courts makes it clear that the threat of a Scalia-Thomas dominated Supreme Court is real. For an analysis of disturbing decisions and opinions by Bush-appointed judges now serving on the federal bench, see Confirmed Judges, Confirmed Fears at here.

Many of the President’s appeals court nominees, some considered potential Supreme Court nominees, are affiliated with an intellectual and political movement to dismantle the constitutional framework Americans have honored since the New Deal, reversing many of the legal and social justice gains of the 20th Century and making it much harder for Congress to act on behalf of the common good.

People For the American Way Foundation’s Courting Disaster 2004 examines the written opinions of Justices Scalia and Thomas in cases that have been decided by 5-4 or 6-3 margins. While they have marshalled 5-4 majorities in a series of damaging “states’ rights” cases, Thomas and Scalia would go further than even that conservative majority is willing to go. Among the consequences of a Scalia-Thomas Court majority:

  • Privacy: Scalia and Thomas are eager to overturn Roe v. Wade and end a constitutional right to reproductive freedom. That could endanger other rights that depend on the right to privacy, including intensely personal healthcare decisions ranging from contraception to “living wills.”
  • Voting Rights: Scalia and Thomas have advocated an interpretation of the Voting Rights Act 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 should be interpreted broadly to prohibit racial discrimination in all aspects of voting.
  • Other Civil Rights Protections: Overruling the 2003 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. Overturning this year’s Tennessee v. Lane ruling would undermine the protections of the Americans with Disabilities Act even further than the Court already has.
  • Religious Liberty: Scalia and Thomas would further dismantle 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 Barnhart v. Peabody Coal Co. could jeopardize retirement benefits for 10,000 coal industry retirees.
  • Environmental Protection: A Scalia-Thomas majority would prevent the federal government from stopping the destruction of endangered species on private land or from overruling state agencies that fail to effectively stop air or water pollution. In the name of property rights it would 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.

Just this week, the important case rejecting the Administration’s claims that detainees at Guantanamo are barred from all access to the federal courts, no matter how they are treated, was decided by a 6-3 margin, with a typically vociferous Scalia dissent calling the majority opinion “monstrous.”

The impact of the next President’s Supreme Court nominees could well be the most far-reaching and longest-lasting legacy of his presidency.

But without thoughtful treatment in the media, the issues at stake will remain largely unexamined by the American people. The influence that seemingly far-removed questions of constitutional theory can have on individuals’ lives and liberties is not a topic of everyday conversation or one that can be easily or thoroughly examined in a sound bite or short television ad.

I strongly urge you to use the teachable moment provided by heightened election-year interest in matters of public policy to help Americans examine the role of the Supreme Court in our constitutional framework, the impact of its rulings on how Americans live and work, and the impact of future nominees. It would be tragic if our nation’s constitutional framework and commitment to the social justice gains of the past 65 years were overturned without the American people even knowing that such a dramatic upheaval was so close at hand.

People For the American Way Foundation is committed to educating the public about the importance of the Supreme Court, and strongly urges all federal elected officials and candidates not to support the appointment of Supreme Court justices who have not demonstrated a commitment to upholding Americans’ constitutional rights and legal protections.

People For the American Way Foundation will soon be releasing a detailed legal analysis of the impact of this Supreme Court Term on civil rights and constitutional liberties.

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