Nation “Courting Disaster” With Next Supreme Court Vacancy


Contact: Tracy Duckett or Nathan Richter at PFAW Foundation

Email: [email protected]

Phone Number: 202-467-4999

PFAWF Releases Updated Report on Devastating Effects of Additional Far-Right Supreme Court Justices, June 2003

With a Supreme Court resignation considered quite possible after the Court completes its term this month, People For the American Way Foundation (PFAWF) released Courting Disaster 2003: How a Scalia-Thomas Supreme Court Would Endanger our Rights and Freedoms. The newly updated report is designed to demonstrate what it would mean if President Bush were to nominate and the Senate approve nominees who share the judicial philosophy of the Court’s most extreme far-right justices – Antonin Scalia and Clarence Thomas – who Bush has said are his models. With the current Court closely divided on many important constitutional questions, new justices will have a major impact on Americans’ lives and liberties.

“Regardless of whether there is a Supreme Court resignation this year, vacancies are inevitably coming down the road,” said People For the American Way Foundation President Ralph G. Neas, noting that it has been nine 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. “Over the next few years, we could have multiple vacancies, comparable to the four vacancies between 1969 and 1972 and the five between 1987 and 1994. Given the enormity of what is at risk, it is vital that the American people and senators are armed with the facts.”

Courting Disaster makes it clear just how much is at stake with the next Supreme Court justices,” said Neas. “President Bush and members of the Senate hold our future in their hands. Senators must carry out their responsibility to be independent defenders of the Constitution. They must insist that future Supreme Court nominees 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.”

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 updated report includes Supreme Court decisions through June 16, 2003. It documents that a Scalia-Thomas majority on the Court would overturn decades of established precedent, sharply curtailing or abolishing many of Americans’ rights, freedoms, and legal protections. A final update will be completed after the Court has finished this term.

The publication of Courting Disaster 2003 is part of a broader public education campaign around the future of the Supreme Court that includes town hall meetings across the country and an Internet-based campaign located at

“We want all Americans, regardless of party affiliation, liberal or conservative, to understand what is at stake,” said Ralph G. Neas, president of People For the American Way Foundation.
“ 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.”

Courting Disaster documents how adding just one or two Justices who share Scalia’s and Thomas’ far-right legal philosophies could tip the balance on the already conservative Court for decades to come. For example:

  • Privacy: If the Court overturns Roe v. Wade, thus ending abortion rights, it 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, prohibitions 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. Overruling this 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.
  • 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 for such offenses as belonging to the wrong political party or for a private comment to a co-worker. A reversal of this year’s 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 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 this year’s Brown v. Legal Foundation of Washington 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.