by Jeremy Leaming
A longstanding meme is that conservatives are concerned about the makeup of the Supreme Court, while progressives, not so much. A paper released by ACS on the opening of the Court’s new term, spells out why progressives should be really concerned about the Supreme Court, if they are not already.
The paper, “Courts Matter: Justice on the Line,” notes the current high court is typically divided 5-4 along ideology on a host of matters that progressives should be concerned about, such as corporate funding of elections, abortion rights, voting rights, privacy rights and equality. The paper speculates on how a more conservative or progressive high court might address some of the nation’s most pressing legal concerns.
For example, the document says a “more conservative Supreme Court might uphold onerous restrictions on a woman’s right to choose and otherwise limit her reproductive freedom – and perhaps even overturn the landmark Roe v. Wade decision.” There are two cases decided by a conservative Supreme Court that have already revealed a desire to limit, if not overturn, Roe.
The high court’s 1992 Planned Parenthood v. Casey created a new standard for deciding when limits on reproductive freedoms pass constitutional muster. For example, waiting periods, parental consent and informed consent are no limits on women’s freedom to a medical procedure. For that matter states have also mandated that physicians give women lectures on abortion or force them to under ultrasounds to view sonograms. And in a 2007 opinion, the Court upheld as constitutional a state law banning late-term abortions.
The advancement of marriage equality might also be slowed by a more conservative Supreme Court, the paper notes. In 2003, the high court by a 6-3 vote invalidated as unconstitutional a Texas law banning sodomy. The ACS paper maintains that today Lawrence v. Texas would likely be a 5-4 opinion.
Let’s note here too that early next year, Jan. 18-19, ACS will host, along with the UCLA School of Law, the Williams Institute, the Yale Information Society, and the Program for the Study of Reproductive Justice, a conference focusing on the impact of Roe and Lawrence and contemplating the future of both equality and liberty concerns. See here for more information about the conference called “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.”
The “Courts Matter” paper also analyzes how a more progressive Supreme Court could handle issues of equality.
The paper notes several high court opinions, including ones from 2007 and 2009, that provided setbacks to efforts protecting equality for women and minorities. For instance, in 2007, the conservative wing of the Court formed the majority to overturn a lower court’s verdict in favor of a woman who sued Goodyear Tire & Rubber Co. after she discovered that for years her male counterparts were bringing home bigger paychecks for the same work. Her gender discrimination case was tossed aside by the Court’s conservative wing, claiming, in part, that the Alabama woman had taken too long to bring the lawsuit. Then in 2009, the Court ruling 5-4 blocked New Haven, Conn. from junking test scores from firefighters that prevented any of the city’s African-American firefighters from receiving promotions.
The nation’s public schools still struggle with building diverse student bodies, and a more progressive Supreme Court would likely be more helpful in the “long march toward equality,” the paper says. In 2007, a more conservative court ruled 5-4 against a Seattle public school district’s efforts to diversify its schools. “A more progressive court might have embraced the position that narrowly tailored measures to achieve diversity in secondary schools are constitutionally permissible,” the paper states.
And while progressives may need to give the makeup of the Supreme Court some more consideration, they should also pay attention to the federal bench, where there are more than 75 vacancies, caused by Republican senators who have made judicial nominations even more of a partisan affair. See JudicialNominations.org for more on the vacancies on the federal bench and their impact on Americans’ lives.
The lower federal courts hear and decide vastly more cases than the Supreme Court handles. But concern for the judicial system can often go overlooked during the ongoing struggle to overcome the Great Recession. Indeed the sluggish recovery cannot be ignored and justifiably occupies the minds of tens of millions from coast to coast.
But the federal courts can and have protected and advanced important rights for the nation’s most vulnerable, just as they can curtail and harm those rights. That’s why at the end of the day, even during incredibly difficult times, courts matter.