Cherished Rights Hang in the Balance: Why Makeup of Courts Matter

November 5, 2012

by Jeremy Leaming

As noted in a Nov. 2 piece for The Huffington Post by ACS President Caroline Fredrickson, the make-up of the nation’s top court rests on tenuous ground – with one more conservative justice helping its conservative bloc turn the clock back on longstanding precedent protecting an array of rights, such as reproductive rights.

Fredrickson notes, “As recently as 2007, the Court upheld burdensome restrictions on abortion rights in Gonzales v. Carhart,” and that a “more conservative Court “could easily further restrict women’s reproductive rights, chipping away at Roe v. Wade or undoing it altogether.” (Fredrickson’s post notes the recent ACS paper, “Courts Matter: Justice on the Line,” which provides numerous examples of Supreme Court precedent that could be fundamentally altered with the change in the make-up of the high court.)

Duke School of Law Professor Neil S. Siegel, also in a piece for The Huffington Post, zeroes in on the importance of the Supreme Court’s role in protecting or eviscerating reproductive rights. Siegel, also co-director of the Program in Public Law at Duke’s law school, writes how close the high court, in the past, has come to overturning the landmark Roe v. Wade. In the 1992 Planned Parenthood v. Casey, Justice Anthony Kennedy had narrowly joined the majority in upholding Roe. But since Casey, Siegel continues, Kennedy “has voted to uphold abortion-restrictive regulations that deny pregnant women the safest method of abortion in medical emergencies.”

He continues:

Overruling Roe and Casey would be unacceptable for the majority of Americans, including many who are troubled by the morality of abortion. These Americans regard women as ethical beings, too. Most Americans believe that, at least during the early stages of pregnancy, women are entitled to make this profound moral decision without governmental interference.

Other highly consequential issues, as the ACS paper notes, are also at play or could be soon before the nation’s highest court. For example, rightwing lawmakers have long sought to gut the Voting Rights Act, primarily by doing away with the law’s preclearance provision that requires certain states and localities with long histories of voter discrimination to obtain approval from a federal court in Washington, D.C. or the Department of Justice for any changes to their elections law. In 2009, the Supreme Court refused to rule on the constitutionality of that provision, but a case out of Alabama could provide the high court with another opportunity to revisit and potentially weaken or trash the VRA’s preclearance provision.

The upshot of the ACS paper and Siegel’s commentary is that longstanding cherished rights are on wobbly ground, especially if the current Supreme Court’s rightwing bloc were to expand. It’s why progressives must find a way, as the Constitutional Accountability Center’s Simon Lazarus recently noted, to compellingly connect Supreme Court actions to the lives of everyday Americans.

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, as well was the landmark Lawrence v. Texas opinion, and consider the future of equality and liberty concerns. See here for more information about the conference, Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.”