The Future of the Supreme Court as an Issue in the Presidential Election

September 30, 2004
To: Journalists
Fr: Ralph G. Neas
Re: The Future of the Supreme Court as an Issue in the Presidential Election

The president elected in November will almost certainly get to name two, three, or even four new Supreme Court justices. With the current Supreme Court closely divided on crucial constitutional issues – a constitutional right to privacy, civil rights enforcement, environmental protection, reproductive rights, separation of church and state, and more – any new justices named by the president and confirmed by the Senate will have an impact on American law and Americans’ lives far beyond the presidential term.

The president elected this fall, and the Supreme Court justices he names, will determine whether or not the nation reverses course on 65 years of legal and social justice progress. But most Americans have only a vague sense of the impact that Supreme Court decisions have on their daily lives – and of the impact that this November’s election could have on the rights, freedoms, and legal protections enjoyed by their children and grandchildren.

Americans should have the chance to learn what is at stake now, not only sometime in the future when Supreme Court vacancies actually open up and nominees are being discussed. Americans should consider the future of the Supreme Court before they are faced with the prospect of having social justice gains reversed or constitutional liberties weakened. I urge you to give this story the coverage it deserves.

Four more years, or forty more years?

It has been more than 10 years since the confirmation of Justice Stephen Breyer, the longest interval without a Supreme Court 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 once every two years. We are long overdue. In fact, we could be entering an era comparable to the four vacancies between 1969 and 1972 and the five between 1986 and 1991.

In recent years, many decisions involving fundamental constitutional issues have been 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 more, for decades to come.

The President’s Men: Scalia and Thomas

President Bush has cited Justices Antonin Scalia and Clarence Thomas as his models for future Supreme Court nominees. Scalia and Thomas are part of a right-wing legal movement seeking to return the nation to a pre-New Deal or even 19th century understanding of the Constitution, when states’ rights and property rights trumped the protection of individual liberties. On almost all important cases, whether in the majority or in dissent, Scalia and Thomas aggressively try to push the Court further to the right.

A Very Real Impact on People’s Lives

The direction of the Supreme Court should not be of interest only to legal scholars and advocates. The Court has tremendous power to influence Americans’ lives in ways that voters deserve to know and be able to consider when casting their vote for president.

A report published this summer by People For the American Way Foundation, Courting Disaster 2004, shows that adding just one or two more justices like Scalia and Thomas – President Bush’s models – to the Court would threaten to overturn more than 100 Supreme Court precedents going back to the New Deal.

  • Privacy: Scalia and Thomas are eager to overturn Roe v. Wade and end the 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: Only one or two more votes with Scalia and Thomas would overturn a number of key rulings protecting civil rights. 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 coercive 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. Two more votes with Scalia and Thomas could reverse Barnhart v. Peabody Coal Co., jeopardizing 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.

Educating Voters

Religious Right leaders are taking President Bush at his word and are mobilizing right-wing voters based on the promise of new Scalia-Thomas justices. A far-right dominated Supreme Court is the ultimate prize for their decades of organizing to move the GOP to the right and elect likeminded candidates.

People For the American Way believes that mainstream and progressive voters should also know what is at stake when they consider who they will vote for this fall.

People For the American Way has prepared nearly a dozen issue-specific fact sheets (available here) documenting the impact that just one or two additional ultraconservative Supreme Court justices would have on issues from corporate abuse and accountability to constitutionally protected civil liberties. Copies of these flyers are attached. Also enclosed is one example of a print ad (available here) targeted at progressive voters who might be considering casting a vote for a third-party candidate. People For the American Way is also conducting a flash animation contest about the future of the Supreme Court through its website.

Too Important to be a Non-Issue

The makeup of the Supreme Court could well be one of the next president’s most lasting and far-reaching legacies. A Court with a solid far-right majority could reverse many of the great bipartisan social justice achievements of the second half of the 20th century. Indeed, a Scalia-Thomas Supreme Court majority could not only overturn scores of constitutional precedents, it could also undermine the constitutional basis for progressive government in this country. Although some reporters have written significant stories about the Court, it has not been widely treated as one of the most important issues at stake in the election.

People For the American Way can provide you with resources on the record of President Bush’s judicial nominees to date, on important Supreme Court cases that have been decided by one or two votes, and on right-wing groups’ mobilizing efforts around the Supreme Court. Please call us if we can be of any help in developing your coverage of this most important issue.

See www.pfaw.org for more information on the Supreme Court and federal judiciary produced by People For the American Way and its research, education and legal advocacy affiliate People For the American Way Foundation.

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