America Courting Constitutional Disaster with Supreme Court Vacancies


Contact: Nick Berning or Josh Glasstetter at People For the American Way Foundation

Email: [email protected]

Phone Number: 202-467-4999

PFAWF Study Documents Individual Liberties and Legal Protections at Risk from New Justices in mold of Scalia and Thomas

More than 100 Supreme Court precedents protecting seven decades of social justice gains could be overturned or undermined if even one or two more justices who share the judicial philosophies of Clarence Thomas and Antonin Scalia are appointed to the Court—that’s the conclusion of Courting Disaster 2005, a newly updated report released by People For the American Way Foundation just weeks before an expected vacancy on the nation’s highest court.

Courting Disaster examines the dissenting and concurring opinions of Justices Scalia and Thomas, dating back to 1986 and 1991 respectively, and asks how American law and society would be different if their opinions were in the majority on the Supreme Court. The report shows how one or two more Supreme Court justices sharing their philosophy would produce a dramatic shift that would deprive Americans of fundamental freedoms and legal protections. The 2005 report, updating a report originally produced in 2000 is available online at Reporters interested in obtaining a paper copy should contact PFAWF.

“Americans deserve independent judges who are fair to all sides and who will protect our rights and liberties,” said PFAWF President Ralph G. Neas. “But today, an emboldened radical right is putting our freedom at risk by seeking total ideological control over the federal judiciary, and the Supreme Court is their top prize.”

Neas noted that there could be as many as four Supreme Court vacancies in the next few years, beginning as soon as this month. It has been 11 years since the last vacancy, the longest interval without an appointment in 182 years, since the administration of James Monroe in 1823. Since 1950, there have been on the average one vacancy about every two years. We could be entering a period with multiple vacancies, comparable to the four vacancies between 1969 and 1972 and the five vacancies between 1987 and 1994.

“Filling the coming vacancies on the Supreme Court will be a crucial test of leadership for President Bush and members of the U.S. Senate, who are his constitutional partners in appointing lifetime Supreme Court justices,” said Neas. “We urge President Bush to engage in genuine consultation with senators from both parties to identify consensus nominees who could win broad support. And we urge all senators to take their constitutional obligation seriously, and to consider what Courting Disaster tells us about the impact of additional far-right justices on Americans’ lives and liberties.”

Neas said PFAWF will work throughout the month of June to educate Americans about how much is at stake with the appointment of new justices. The information contained in Courting Disaster will anchor this campaign, which will include public educational events around the country, educational and organizing campaigns on the Internet, and intensive media outreach, including paid advertising.

“People need to know that their most fundamental rights are at stake,” Neas said. “They need to know that a future none of us wants to imagine may be closer than any of us wants to admit, and that it’s essential for us to work together to prevent a right-wing takeover of the courts. That’s what Courting Disaster seeks to do.”


With the Court so closely divided on important constitutional issues, even one new far-right justice would be very damaging. Three or four more justices who share Scalia’s and Thomas’ extreme views would spell disaster. During the past half-century, the Supreme Court protected individual rights and liberties in many critical areas.

A few examples demonstrate the scope of the Court’s impact:

  • it struck down many practices related to elections and the political process that denied minorities the right to full, equal participation in our democracy;
  • it held that the Constitution protects Americans’ privacy, that women have a fundamental right to a safe, legal abortion, and that governments cannot criminalize adults’ private consensual sexual behavior;
  • it struck down the pernicious de jure racial segregation in our nation’s public schools;
  • it protected government employees from being fired or demoted for their political party affiliation;

    A radical right Supreme Court would not only bring about the reversal of more than half a century of legal and social justice accomplishments, but could also return us to a situation America faced in the early 1900s, when progressive legislation, like child labor laws, was adopted by Congress and signed by the President, but repeatedly rejected on constitutional grounds by the Supreme Court.

    A shift of one or two votes would reverse Roe v. Wade’s guarantee of reproductive freedom and the right to privacy. But that would just be the beginning. Among those rights that could be drastically redefined if just one or two hard-right justices join the Court are:

    Privacy Rights: Reversal of Lawrence v. Texas (2003) would authorize criminal prosecution of private sexual conduct by consenting adults. And reversal of Ferguson v. Charleston (2001) would allow hospitals to test pregnant women without their knowledge or consent for suspected drug use and give the results to police.

    Civil Rights and Discrimination: Reversal of Jackson v. Birmingham Bd. of Educ. (2005) would allow retaliation against those who complain about illegal sex discrimination in education. Reversal of Grutter v. Bollinger (2003) would forbid affirmative action in higher education. Reversal of J.E.B. v. Alabama (1994) would allow sex discrimination in jury selection. Reversal of Olmstead v. L.C. (1999) would mean that improper and unnecessary institutionalization of disabled persons would no longer be considered a violation of the Americans with Disabilities Act (“ADA”).

    Church and State Separation: Reversal of Lee v. Weisman (1992) and Santa Fe Independent School Dist. v. Doe (2000) would eliminate true government neutrality toward religion and authorize government-sponsored prayer at graduation and other public school events.

    Workers’ Rights and Consumer Protection: Reversal of Rutan v. Republican Party of Illinois (1990) would allow government employees to be fired for belonging to the wrong political party. And reversal of Rush Prudential HMO, Inc. v. Moran (2002) would invalidate important state laws protecting HMO patients’ rights in more than 40 states.

    Environmental Protection: Reversal of Alaska Department of Conservation v. EPA (2004) would strip the EPA of the authority to prevent damaging air pollution by industries when state agencies improperly fail to do so.

    Campaign Finance Reform: Reversal of the part of the 1976 Buckley v. Valeo ruling that the far right opposes would invalidate limits on individual campaign contributions. And reversal of McConnell v. Federal Election Commission (2003) would invalidate most of the landmark McCain-Feingold campaign finance law, including its ban on political parties’ use of unlimited soft money contributions.

    It is no exaggeration to say that in all these areas, a Scalia-Thomas Supreme Court would radically rewrite our nation’s fundamental definitions of justice. This disturbing truth should figure prominently in any public debate over the courts and should give mainstream Americans of both parties reason to pause before accepting any far-right nominee to the nation’s highest court.