‘Supreme Coort Follows th’ Iliction’

‘Supreme Coort Follows th’ Iliction’

‘Supreme Coort Follows th’ Iliction’


‘Supreme Coort Follows th’ Iliction’

Missoula, Mont.

Thank you for your Supreme Court issue, “Up for Grabs: The Supreme Court and the Election” [Oct. 9], which makes the point that Bush vs. Gore will literally make a life-or-death difference in the federal courts. As someone who practices daily in federal court, I can assure you that the difference between our new Clinton appointee (one of the few to be confirmed) and the prior Reagan appointee is the difference between day and night.


Washington, D.C.

The Nation‘s special issue on the Supreme Court was a useful reminder about the importance of the judicial branch to progressives, but why was the only message, both explicit and implicit, to vote for Al Gore for President? We need a serious debate about growing reactionary trends in law and how to combat them, but you left out some significant voices and perspectives in your discussion. A full discussion paper, Saving the Courts, is available on our website (www.votenader.org/issues/court_save.html). I offer here a few remarks in the very limited space allowed.

Here in Washington, the front-page news recently was that the Supreme Court, by a margin of 8 to 1, summarily rejected a voting rights lawsuit brought by the District of Columbia on behalf of the 600,000 Americans who live in the city and have no voting representation in Congress. The sole dissenter was Justice John Paul Stevens, who was nominated by President Gerald Ford. In the prior 2-to-1 decision in the district court, two judges appointed by President Clinton had determined that Washingtonians, nearly two-thirds of whom are African-American, have no constitutional right to vote. The lone dissenter, Louis Oberdorfer, was appointed by President Lyndon Johnson and reflects the kind of passionate champion of civil rights and civil liberties who no longer gets appointed to the bench by Democratic Presidents. Needless to say, despite intense local appeals, the Clinton Justice Department vigorously opposed the voting rights suit, which had the strong support of the DC Council, Delegate Eleanor Holmes Norton and Mayor Anthony Williams.

The corporate Democratic judges recently appointed to the courts go with the flow in this fashion. The Clinton Administration itself has been something of a civil liberties nightmare, as documented repeatedly by Anthony Lewis and Nat Hentoff. Rapid expansion of the death penalty at the federal level, destruction of habeas corpus, warrantless searches of public housing, increasing wiretap authority, a stepped-up failed War on Drugs, secret evidence in deportation proceedings–these are policies pursued by the Democrats in the White House. Except for abortion (which George W. Bush appears to have surrendered on, given his understanding of where most Americans stand after the triumph of the women’s movement), it is hard to think of any significant differences between the Democrats and Republicans on civil liberties issues. When at one of the debates Bush said he opposed allowing gays and lesbians to marry, Gore enthusiastically agreed, essentially now putting him to the right of Dick Cheney! I opposed the Defense of Marriage Act, which the Democrats supported, and defend the equal rights of gays and lesbians in every sphere of life, including civil unions.

Whom do we suppose Al Gore would appoint to the Supreme Court? Not Lani Guinier, whom they dropped like a hot potato. Not longtime Clinton friend Peter Edelman, whose widely discussed nomination to a federal appeals judgeship was promptly dropped by Clinton after Republicans objected to his scholarship on ending poverty. Not anyone remotely so visionary or brave as the late Justices William Brennan or Thurgood Marshall. Not even anyone so progressive as Justice David Souter, President Bush’s appointment, who has turned out to be significantly more interested in civil liberties and democracy than, for example, Justice Stephen Breyer. Recall Forbes v. Arkansas Educational Television Commission (1998), where a majority that included Breyer upheld the right of state-owned television broadcasters to exclude third-party candidates from government-sponsored campaign debates. It was only Souter, joined in his passionate dissent by Stevens and Ruth Bader Ginsburg, who stood up for the First Amendment rights of outsider parties and the democratic right of the people to decide elections for ourselves. The same three (two Republican appointees, one Democratic) dissented in Timmons v. Twin Cities Area New Party (1997), where Breyer cheerfully joined with the conservatives to uphold undemocratic antifusion laws that stifle third-party organization.

Many liberals like to complain about the growing conservatism of the Democratic Party but then jump on the bandwagon at election time in the name of saving the Supreme Court. Millions of people are refusing to play that game this year. Many remember the unanimous support for Justice Scalia by Senate Democrats and the eleven Democratic senators, in a Democrat-controlled Senate, who put Justice Thomas over the top in a 52-to-48 confirmation vote.

These views deserve some support and analysis in your fine pages.


New York City

You overestimate the historical correlation between the voting records of Supreme Court Justices and the politics of the Presidents who appointed them. Dwight Eisenhower, an opponent of big government and judicial activism, appointed not only liberal lion Earl Warren but also William Brennan. Richard Nixon selected Harry Blackmun as a law-and-order conservative. Ronald Reagan chose Sandra Day O’Connor and Anthony Kennedy, and George Bush chose David Souter, primarily because they were expected to overturn Roe v. Wade; all three now vote to uphold Roe.

In contrast, progressive Presidents often elevate reactionary Justices: All four of Harry Truman’s Court picks (Vinson, Burton, Minton and Clark) turned out to be far more conservative than the Democratic Party of the fifties; privacy-opponent Byron White’s views certainly did not reflect those of booster John Kennedy. Franklin Roosevelt would have been surprised by the segregationist sentiments of his second nominee, Stanley Reed.


Washington, D.C.

In addition to abortion rights, there are a number of other constitutional and statutory protections for women’s rights that could be threatened by even a slight change in the Supreme Court’s majority. For one thing, equal protection guarantees are at risk. This Supreme Court term marks the thirtieth anniversary of the landmark decision, in Reed v. Reed, that applied Fourteenth Amendment equal-protection principles to prohibit sex discrimination. Since Reed, the Court has struck down laws based on stereotypes about women as the weaker sex and has opened jobs, educational opportunities and basic citizenship rights to women. Yet three current Justices (Rehnquist, Scalia and Thomas) have rejected the post-Reed heightened scrutiny of gender classifications. Justice Scalia, in his dissent in the 1996 case opening up the Virginia Military Institute to women, even cited with approval a 1948 decision that upheld a state law prohibiting a woman from working as a bartender unless she was the daughter or wife of the bar owner.

A Court with a different majority could also extend its hostility to a woman’s right to choose beyond abortion itself to opposing protection of women’s access to reproductive health clinics, to allowing more state control over pregnant women and even to restricting specific forms of contraception. If the latter seems unthinkable, note that four current members of the Court have already endorsed the preamble to a Missouri law that defines human life to begin at conception, with conception defined as the time of fertilization. This could make methods of contraception, like forms of the pill and the IUD, unlawful.

In addition, many key federal statutory protections against discrimination are in place only as a result of slim majorities, and a current majority holds a restrictive view of Congress’s authority, which has already resulted in the invalidation of an important provision of the Violence Against Women Act and which could jeopardize other critical protections for women’s rights. These include the right of state employees to sue their employers for damages under civil rights laws of particular importance to women, such as the Equal Pay Act and the Family and Medical Leave Act.

Many rights women take for granted are not nearly as secure as they might think. A new report, The Supreme Court and Women’s Rights: Fundamental Protections Hanging in the Balance, provides more detail and is available at www.nwlc.org.

National Women’s Law Center

Evanston, Ill.

Those who argue that “it’s the Supreme Court, stupid” in this election have misread judicial history. The Court rarely leads; it “follows th’ iliction returns,” in the words of Mr. Dooley.

The Dred Scott decision validated the pervasive racism of the nineteenth century and said the Constitution was a slaveholders’ document, the identical view of the abolitionists. The objectors in the North did not primarily object to its racism but to the argument that Congress had no power to restrict slavery in the territories. After all, slavery was buttressed by those pillars of society, market capitalism, the Constitution, property rights and the protection of property from federal interference. The Court in Dred Scott did not lead, it validated the values of the time.

What about Plessy v. Ferguson, which enshrined segregation in the 1890s? The conservative Court simply ratified the abandonment of radical Reconstruction, which gave blacks the vote but left them economically defenseless.

When the Court in the thirties validated the National Labor Relations Act, it did so after violent and painful organizing drives of the CIO and a growing number of sit-down strikes. When labor suffered numerous Court defeats between 1900 and 1937, it was after the redbaiting of World War I, the crushing of the Wobblies, the open-shop propaganda, etc. The Court in 1915 even said workers who signed a “yellow dog” contract, pledging not to join a union, were off-limits to union organizers.

Brown v. Board of Education was not an open road to the end of segregation; it took another ten years to write in the Voting Rights Act of 1965, and desegregation “with all deliberate speed” became a perfect out for school boards. The courts are like the public schools, both presumably bulwarks of democracy, but as a retired Chicago public school teacher I would argue that the schools, like the courts, validate both the good and evil of the time.


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