More Than Abortion Ruling at Stake in Presidential Election

For the first time since 1936, the future direction of the Supreme Court is a campaign issue. The court is closely divided on many issues, and some vacancies are almost inevitable during the next four years. Who becomes president could decide the court’s direction for years to come.

All the attention, so far, has been on Roe vs. Wade, the abortion decision. But more is at stake: civil rights for racial and other minorities; gay rights; the environment; religious freedom and church-state separation; violence against women; the rights of the elderly; disability rights; health care; federal oversight of the economy; gun control; capital punishment; fair labor standards for workers; campaign-finance reform; consumer suits; antitrust law and more.

On almost all these issues, a shift of one or two votes will be decisive. Civil rights for racial and ethnic minorities is one of the best examples. The Rehnquist court’s record on promoting civil rights for racial minorities is a dismal one. Since April 1988, when Justice Anthony M. Kennedy joined the bench, giving conservatives a solid though thin majority, the court has cut back on school desegregation, weakened enforcement of the laws against discrimination in employment and voting, and virtually eliminated affirmative action by state and local governments.

The court’s voting-rights decisions have been particularly harmful. Improvement for people of color in America has come only from their enhanced electoral power. But it is precisely in this area, and especially in the South, where blacks still suffer from ballot-box discrimination, that the court has been most hostile. Five-to-four majorities have consistently struck down electoral districts in which minority voters would be a majority, virtually eliminating their chances to gain representation approximating their share of the state population.

Gays and lesbians have not done well before the Supreme Court, either. Starting in 1985, when a 5-4 majority allowed states to criminalize homosexual intercourse even in the privacy of one’s home, the court has ruled against gays and lesbians in three of four cases, most recently in a 5-4 decision upholding the Boy Scouts’ right to follow an antigay philosophy. The one case gays and lesbians have won, a 6-3 decision in 1996 striking down Colorado’s attempt to deny gays any protection at all against discrimination, drew a dissent from Justice Antonin Scalia, joined by Justice Clarence Thomas and Chief Justice William Rehnquist, against what they called “special protection,” a view that Gov. George W. Bush shares.

Environmental protection is also at stake. Although the court, as a whole, has been relatively supportive of specific environmental laws like the Endangered Species Act, its five conservatives have steadily weakened the ability of citizens to enforce these laws, a central element in environmental law enforcement. Even when all the other members of the court voted this past term to allow a citizen suit, Friends of the Earth vs. Laidlaw, Justices Scalia and Thomas refused to go along. Moreover, unlike the rest of the court, the two have consistently voted to weaken the environmental laws themselves.

The current conservative majority on the court has been most active in trying to limit the power of the national government. There have been two great shifts of power to the federal government in our history: the Civil War amendments and laws on behalf of black slaves, and the New Deal. Both reform efforts encountered hostility. Between the end of the 19th century and the early years of the New Deal, that hostility was reflected in the Supreme Court. Between 1937 and 1987, however, the court switched and allowed the national government vast authority in civil rights and in social legislation.

The conservative justices and their allies in other branches of government have resumed their fight against the New Deal and Civil War reforms, persistently trying to shrink federal power. Starting with a 5-4 decision in 1993, they invalidated federal legislation that enlisted the states in a program to deal with low-level radioactive waste, legislation the states themselves had proposed and most supported. Then, in a series of sharply divided 5-4 decisions, the court struck down or narrowly interpreted dozens of federal laws dealing with gun control, violence against women, religious freedom, fair labor standards for state employees, protection for the elderly against state discrimination, protection for the disabled and trademark and patent protection.

In so doing, the justices have ignored judicial and other precedents, expanded the meaning of constitutional provisions far beyond the text and have relied on newly discovered “understandings” of the spirit and structure of the Constitution. At the same time, they have narrowly construed provisions that give Congress the authority to protect individual rights, striking down laws to protect women against domestic violence, religious groups against unnecessary burdens on their religious practice and the elderly against employment discrimination by state officials.

Campaign-finance reform is still another area that will be affected by the presidential choice. All agree that reform is necessary. The Supreme Court’s 1976 decision in Buckley vs. Valeo, which gave campaign expenditures free-speech protection, has blocked any meaningful reform. Restrictions on campaign contributions were, however, allowed, and the court has upheld some state and local efforts to limit contributions. In these latter decisions, Scalia and Thomas have been two consistent dissenters, insisting that there be no limits at all on campaign financing.

These are but some of the issues that will be affected by the elections. Bush has obviously not read or studied them all, nor has Vice President Al Gore. But on almost all of them, the governor’s words and deeds match those of Scalia and Thomas, whom he has named his favorite justices. Gore directly opposes the Scalia-Thomas positions.

Nor is the Supreme Court all that is at stake. Although the court decides the basic legal issues, it currently handles only about 75 cases a year. The courts of appeal, however, decide between 25,000 to 30,000 cases annually; for all but a tiny fraction of cases, they are the courts of last resort. Because the Republican-controlled Senate has refused even to grant hearings to many of President Bill Clinton’s judicial nominees, more than 7% of the federal judiciary is vacant.

The next president will thus shape the entire federal judiciary, from top to bottom, and with that how we will deal with some of the most basic domestic challenges for decades to come.