Putting a Radical Right Team on the Bench

Putting a Radical Right Team on the Bench

Putting a Radical Right Team on the Bench

The future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.


George W. Bush has publicly cited Justices like Antonin Scalia and Clarence Thomas as the kind of "strict constructionists" he will appoint to the Supreme Court. Scalia and Thomas have long been the favorites of right-wing religious, political and legal activists eager to see the Supreme Court roll back decades of progressive rulings.

People for the American Way Foundation recently released Courting Disaster, the result of a six-month analysis of the concurring and dissenting opinions of the two Justices. It asks, "If these opinions were shared by a majority of the Court, how would that change the outcome of the Court's decisions?" The answer is chilling. If those angry dissents and minority concurring opinions were majority rulings, the result on issue after issue would be a radical, reactionary shift in US law.

Many people are worried about the Court's future rulings on reproductive rights. It's true that Justices Scalia and Thomas are eager to overturn Roe v. Wade, and they need only two more votes to do it. Maybe only one–Justice Anthony Kennedy's vote supporting the ban on so-called partial-birth abortion has been interpreted as an indication that he is having doubts about his 1992 vote reaffirming Roe v. Wade. But much more than reproductive rights is at stake.

As the contributors to this issue document, the Supreme Court is already dominated by conservative Justices who are aggressively promoting a troubling new theory of federalism and states' rights that is drastically restricting the power of Congress to protect Americans' rights and to address serious national problems. But even this conservative activist majority has frequently not been willing to go as far as Scalia and Thomas want. And that's why the prospect of a Scalia-Thomas majority on the Court is so ominous.

Here's just one example: In a 1994 voting rights case, Justices Thomas and Scalia advocated a position that, according to four of the other Justices, was so "radical" it would have meant overturning or reconsidering twenty-eight previous Supreme Court rulings that the Voting Rights Act of 1965 should be interpreted to prohibit racial discrimination in all aspects of voting.

There's much more. A Scalia-Thomas majority would exempt elections for state judges from all provisions of the Voting Rights Act, permit sex discrimination in jury selection, eliminate affirmative action, restrict remedies for discrimination while making it harder to prove discrimination in the first place and hold that improper and unnecessary institutionalization of disabled persons would no longer be considered a violation of the Americans With Disabilities Act.

Religious liberty would suffer under a Scalia-Thomas majority hostile to the principle of church-state separation. Such a Court would overturn a series of precedents protecting the rights of students to be free from religious coercion in public school settings. The floodgates would be opened to direct government funding for religious schools.

A Scalia-Thomas majority would weaken the right to strike and bargain collectively, make it easier to fire workers for political reasons and allow employers to deceive workers about the solvency of benefits plans. Scalia has ridiculed laws that protect workers from sexual harassment.

The federal government would be barred from stopping the destruction of endangered species on private land. Local governments' power to protect the environment would be restricted.

Campaign finance reform would be virtually impossible under a Scalia-Thomas Court, which would throw out any and all limits on campaign contributions and spending.

Sensible gun control legislation would be struck down.

What is at stake is the legal and constitutional framework under which the nation will operate for decades to come. Radical right leaders know they're just one election away from winning their entire political agenda, and they're mobilizing voters with the prospect of a right-wing-dominated Supreme Court. It was their vocal "no more Souters" campaign that led George W. Bush to explicitly name Scalia and Thomas as his models. And it has now been six years since the confirmation of the Court's most recent appointee, Justice Stephen Breyer. Only once in our history–177 years ago–have we gone so long between appointments.

Indeed, the future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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