Magazine article The Nation

UP FOR GRABS : The Supreme Court and the Election

Magazine article The Nation

UP FOR GRABS : The Supreme Court and the Election

Article excerpt

Whom do you want to nominate Justices for the Supreme Court in the next four years? No issue is more vital in the race between Democrat Al Gore and Republican George W. Bush--repeat, no issue is more important than the makeup of the next Supreme Court--and therefore the future outlook for reproductive rights, civil rights, campaign finance reform, environmental protection and perhaps much, much more.

No issue is more crucial, for two reasons. First, no matter what the next President or Congress may do or think, among the three branches of the federal government, the Supreme Court is often first among supposed equals, wielding more authority than either of its counterparts through its power to declare unconstitutional the actions of Presidents (such as Harry Truman's seizure of the steel mills in 1952), as well as enactments of Congress or the state legislatures (such as those attempting to validate prayer in public schools).

It was the Supreme Court, of course, that held in Brown v. Board of Education in 1954, one of its most historic decisions, that public school segregation violated the Constitution. That decision opened not just the schoolhouse door but the gate to the modern civil rights movement, which in the past half-century has so nearly transformed the nation.

It was the same Court, however--different Justices in different times, but with the same powers--that in 1896 upheld a Louisiana "separate but equal" law, ushering in the six long decades of racial segregation that were not effectively ended until Brown (and not even then, in some areas). Even earlier, in 1857, the Court's infamous Dred Scott decision held that black people had no rights white people were bound to respect and that Congress could not prohibit slavery in the territories. The Civil War followed not long after.

So despite the enmity earned in the twentieth century by the Warren Court in the fifties and sixties for its controversial decisions (Brown, Miranda, Baker v. Carr), the Supreme Court has not always been--and need not necessarily be in the future--a bulwark of liberal attitudes. In the thirties, in fact, Franklin Roosevelt undertook his ill-fated "court-packing" scheme because of a series of Court rulings--such as one finding unconstitutional his National Industrial Recovery Act--that he thought were crippling his New Deal programs. In perhaps his worst political defeat, FDR failed to "pack" the Court, but the threat may have achieved his objective in several subsequent decisions--upholding, for example, federal power to prohibit shipment in interstate commerce of goods manufactured in violation of wage-and-hour laws. This was a startling about-face from an earlier ruling.

The second reason no issue is more critical in 2000 than the future makeup of the Supreme Court is that the present Rehnquist Court is so narrowly divided. Sometimes it presents a majority--usually including Chief Justice William Rehnquist--for conservative views; occasionally, it comes to a 5-to-4 or even 6-to-3 ruling for a more liberal attitude. The Court resembles, therefore, a closely balanced scale to which any added weight will tip it conclusively right or left.

A rightward ideological shift of just two votes could swing that 6-to-3 lineup, only rarely existing on the Rehnquist Court, into a solid 5-to-4 majority that in the future would follow the established pattern of Justices Antonin Scalia and Clarence Thomas, the two farthest-right members of the Court. Among other things, that might well doom Roe v. Wade, which protects a woman's right to choose. Three more Scalia&Thomas-style votes would transform what's now a back-and-forth Court into a conservative bastion that could last for generations--like the one that so frustrated FDR in the thirties.

Yet more conservative votes on the Court are exactly what the Republican candidate says he'd provide. He is on record that he'd appoint more Justices like Scalia&Thomas, those joined-at-the-hip right-wingers. …

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