The upcoming presidential election will shape the Supreme Court for decades to come. John Paul Stevens is 88, David Souter dislikes Washington and the 75-year-old Ruth Bader Ginsburg has been treated for cancer. One or more of these liberal Justices will probably leave the bench in the next four years. The replacement of one or two of them by a conservative would mean a rollback of key rulings of recent years.
Roe v. Wade has drawn the most attention, but many other liberal rulings of the past twenty years that were decided by 5-to-4 or 6-to-3 votes could be reversed. Even if these decisions are not overruled outright, conservative judges can obtain the same result by redefining what is protected, erecting procedural hurdles or forcing repeated expensive litigation. Here are some of the most important rulings that would be threatened by a McCain Court:
§ Abortion. To appeal to the religious right, John McCain promised to appoint more conservative judges like Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito, who would overturn Roe v. Wade. Some observers believe that these Justices would not jettison Roe outright, for fear of producing negative fallout for the Republican Party. But a McCain Court could eviscerate the law by adopting former Chief Justice William Rehnquist’s strategy of redefining the right to an abortion as a mere “liberty interest.” That would open the door for Congress or the states to enact virtually any restrictive legislation short of total abolition. Minors would be particularly at risk. Currently they can avoid having to get their parents’ consent as long as they obtain court approval, a difficult but not impossible hurdle; this option would probably be eliminated. It is also likely that the current protections for women against harassment when they go to abortion clinics would be eliminated or substantially weakened. A more conservative Court could also create a broad “conscience exemption” for pharmacists and other health workers who refuse to dispense emergency or other contraceptives, something right-wing religious groups have been urging in courts and legislatures around the country. The Department of Health and Human Services has proposed a regulation allowing such an exemption.
§ National security. Justice Anthony Kennedy was a key vote in Rasul v. Bush (2004), which extended American law to Guantánamo detainees, and the swing vote in Hamdan v. Rumsfeld (2006), which forced military commissions to comply with the Geneva Convention and the Uniform Code of Military Justice. He was also the swing vote in Boumediene v. Bush (2008), which granted detainees the right to habeas corpus. Should the dissenters pick up one more vote, Kennedy will lose that pivotal position.
§ Church-state separation. The Court banned official school prayer fifty years ago, but Christian-right groups still attack or ignore the ban. The margin for upholding the ban in a recent decision was 6 to 3; with Kennedy and the now departed Sandra Day O’Connor voting with the majority, those decisions are vulnerable. Religious groups have also pushed for the right to display religious symbols in public spaces. O’Connor was the swing vote in the Court’s most recent decision prohibiting such displays (McCreary County v. ACLU of Kentucky, 2005).
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§ Gay rights. Five of the six members of the majority in Lawrence v. Texas (2003), the landmark case that ended the criminalization of same-sex intercourse, remain. The replacement of one of them by a conservative could threaten that decision. Even if Lawrence survives, gays’ chances of ending discrimination in other areas–such as adoption, hospital visits and housing–are certain to be reduced.
§ Affirmative action. Ever since Kennedy joined the Court in 1988, the five conservatives, including O’Connor, have evinced indifference verging on hostility toward racial justice, particularly when employment discrimination and affirmative action were involved. They allowed limited affirmative action in higher education in Grutter v. Bollinger (2003) because O’Connor joined the majority, but that ruling is probably doomed because of her retirement. The 2007 Seattle and Kentucky decisions (Parents Involved in Community Schools v. Seattle School District No. 1), overturning policies intended to promote integration in elementary and secondary schools, left a very narrow window for dealing with racial segregation because Kennedy refused to go along with Roberts’s sweeping opinion. That window would almost certainly close with a McCain-appointed Justice.
§ Electoral issues. Widespread gerrymandering has produced incumbency re-election rates of 90 percent or more. Four years ago in Vieth v. Jubelirer, Scalia and three colleagues tried to block judicial scrutiny of the practice [see Schwartz, “Out With Gerrymanders!” July 1, 2004], but Kennedy managed to keep the door open. He would become irrelevant on this issue as well with the first McCain appointee. The limits on campaign contributions, whatever McCain’s views on campaign finance reform, might also be eliminated or undermined. Indeed, the current Court has already begun to weaken the McCain-Feingold law, in Federal Election Commission v. Wisconsin Right to Life (2007).
Other areas at risk include First Amendment protection for the Internet and expressions of dissent like flag burning, women’s rights (Rehnquist was surprisingly supportive of them), protections for immigrants, the availability of legal services and environmental protection laws.
Some commentators have suggested that a large Democratic majority in the new Senate could block an extreme nominee. That is wishful thinking. No Supreme Court nominees have been rejected since the bitter fight over Robert Bork in 1987, and Democrats don’t want to go through that kind of battle again. Moreover, it is very difficult to block someone solely on ideological grounds, as the Alito and Roberts nominations showed, particularly if the nominee is otherwise qualified and is a smooth performer, like Roberts, at the confirmation hearing. It will be especially difficult to block a female nominee, given the scarcity of women on the Court, and there are many far-right women on the federal courts and elsewhere from which to choose.
Constitutional issues like those discussed above are a crucial but relatively small part of the Court’s business, and few of them directly affect most Americans. The bulk of the Court’s work involves the interpretation and application of federal statutes and regulations, which do touch the daily lives of all Americans. Republican administrations and an increasingly conservative judiciary have sought to gut laws and regulations protecting consumers, workers, the elderly and others. In the comments that follow, five authorities discuss recent and upcoming developments in these important areas of federal law.
Other Contributions to the Forum
“Safety Last,” by David C. Vladeck
“Health Cares,” by Sara Rosenbaum
“Senior Rights & Wrongs,” by Harper Jean Tobin
“Debtor Nation,” by Robert M. Lawless
“Hard Knocks in the Workplace,” by Eric Schnapper