Courting Disaster Update Shows Next 1-2 Appointments Could Tip the Scales Against Fundamental Civil & Constitutional Rights
At the close of its 2000-2001 term, the U.S. Supreme Court remains closely divided and precariously balanced. On the one hand, narrow decisions have continued to protect many fundamental rights that Americans count on and the Court precedents that have upheld and strengthened them. On the other, far right justices have come very close – and have sometimes succeeded – in rolling back many of those rights, whether by overturning and undermining established precedents or by reducing Congress’ power to protect Americans’ rights.
Over one-third of the Court’s 87 rulings this term were decided by only a one- or two-vote margin. Many of these narrow rulings dealt with such fundamental issues as civil rights, privacy, federalism and "states’ rights," religious liberty, freedom of expression, immigrants’ rights, and campaign finance. The Court’s decisions produced mixed results in most of these areas.
"The Supreme Court holds the key to the future of many of the freedoms that Americans have come to take for granted," said Ralph G. Neas, President of People For the American Way Foundation (PFAWF). "The Court has already begun eroding these rights and right now is just a vote or two away from further curtailing or abolishing many of them."
A new report released today by PFAWF updates last year’s groundbreaking Courting Disaster, which analyzed the impact a Scalia-Thomas Court majority would have on Americans’ most fundamental civil and constitutional rights. The new Courting Disaster: 2000-2001 Update reviews the Court’s key rulings from the term just ended, as well as several from the very end of last year’s term, after publication of the original report. Like the original, the Update focuses especially on the concurrences and dissents of Justices Scalia and Thomas.
We are now in the longest interval between Supreme Court vacancies in 178 years, and it is widely expected that this administration will have the opportunity to name one, two or more justices. Courting Disaster demonstrates that if those justices are, as President Bush promised his supporters during the campaign, in the right-wing mold of Justices Antonin Scalia and Clarence Thomas, it would result in the overturning of 100 key Supreme Court precedents in critically important areas of civil and constitutional rights.
"President Bush campaigned on a promise to the far right that he would seek to place more justices like Scalia and Thomas on the Court," Neas explained. "Courting Disaster and our new Update show just how dangerous such a Scalia-Thomas majority would be."
The Update highlights narrowly decided rulings, and focuses on nine key areas: 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. Among the rulings highlighted are:
Civil Rights: In the reapportionment case Hunt v. Cromartie, a 5-4 majority rejected the extreme view advanced by Scalia and Thomas that race can never be taken into account in redrawing voting districts.
Privacy Rights: Two 6-3 rulings illustrate how extreme Scalia’s and Thomas’ views are and, should they become the majority views, how dangerous. At issue in Ferguson v. Charleston was a state hospital’s policy of drug-testing women without their knowledge and turning positive results over to the police so that the women could be arrested. City of Indianapolis v. Edmond concerned the police’s practice of stopping motorists at random, without suspicion, to look for drugs. The Court struck down both policies and in both cases Scalia and Thomas dissented.
Church-State Separation: In a 6-3 ruling in Good News Club v. Milford Central School, the Court held that a public elementary school that allows secular groups like the Girl Scouts to use school facilities after hours for its meetings must also allow an adult-led religious proselytizing group that targets children as young as six to do the same. In a part of the ruling with potentially far-reaching impact on religious liberty, five of the justices in the majority reached beyond the factual record established in the case to suggest that the Establishment Clause could never be violated by allowing such a religious group to meet right after school.
Also revealing during this term was Scalia’s and Thomas’ reaction to a case the Court refused to hear. In City of Elkhart v. Books the appeals court had found that erecting a monument containing the Ten Commandments on the lawn of a city government building unconstitutionally advanced religion. Scalia and Thomas were joined by Chief Justice Rehnquist in a dissent from the Court’s denial of certiorari that seemed to simply brush aside previous precedent that had disallowed government posting of the Ten Commandments because of their inherently religious nature.
Federalism and Congressional Authority. The Court continued its recent trend of 5-4 decisions (with Scalia and Thomas in the majority) by restricting Congress’ power to enact protections for citizens’ rights and immunizing states from liability for violating those rights. Since 1995, the Court has invalidated congressional legislation at least two dozen times; in the first 200 years of our nation’s history, in contrast, the Court overturned federal statutes just 128 times.
In a key 5-4 states’ rights ruling this term, Board of Trustees of University of Alabama v. Garrett, the Court expanded its states’ rights theory into a new area: the Americans with Disabilities Act. The Court’s 5-4 ruling invalidated the part of the ADA that allowed disabled state workers to bring federal discrimination lawsuits seeking money damages when the state agencies that employ them violate the ADA.
Free Expression: By a 5-4 vote in Legal Services Corporation v. Velazquez the Court narrowly protected First Amendment rights by overturning congressional restrictions that prohibited any Legal Services Corporation funding from being used to represent clients in challenging welfare laws. Scalia, who wrote the dissent joined by Thomas, Rehnquist, and O’Connor, was dismissive of concerns that such a restriction would harm Legal Services clients. Scalia’s reasoning, carried to its logical conclusion, would dramatically increase government’s power to regulate speech.
Campaign Finance. In a 5-4 decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee, the Court upheld a federal law that limits political party spending coordinated with a candidate in order to prevent circumventing limits on contributions to candidates. The dissent makes clear that a Scalia-Thomas Court would overturn the part of the 1976 Buckley v. Valeo ruling that authorizes limits on contributions to candidates, making meaningful campaign finance reform impossible.
"If the far right succeeds in remaking the Court in the image of Scalia and Thomas, the result would be a disaster for millions of Americans," said Neas. "Everyone understands that a Scalia-Thomas Supreme Court would roll back abortion rights, but Courting Disaster and this year’s Update also show many more danger areas – voting rights, sex discrimination and sexual harassment, religious liberty, workplace rights, environmental protection, campaign finance reform – where the rules could be rewritten by a Supreme Court hostile to these rights and concerns."
As Courting Disaster showed and this year’s Update underscores, adding one or two justices who share Scalia’s and Thomas’ far-right philosophy to an already conservative Court could tip the balance on the Court for decades to come by overruling important Court precedents, in whole or in part. For example:
Privacy: It would take at most two more votes like Scalia’s and Thomas’ to overturn Roe v. Wade, thus ending abortion rights. Such a ruling could also endanger other rights that depend on the right to privacy, including the most intensely personal health care 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 such as that the Voting Rights Act shouldn’t apply to elections for state judges, the prohibition on sex discrimination shouldn’t apply to jury selection, and disabled persons shouldn’t be protected from unnecessary institutionalization under the Americans with Disabilities Act.
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 vouchers and other government subsidies of religious activities, government-sponsored prayer at school events and in other settings, and even redrawing of school district lines 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 such "offenses" as belonging to the wrong political party or making a private comment to a co-worker.
Download a copy of Courting Disaster: 2000-2001 Update