Posted on 08/24/2022
At its best, the Court is a place where the least powerful voices in our society are heard and protected, whether they’re African Americans trying to vote or get an education in the era of segregated schools and poll taxes…or women trying to make their own health decisions in the face of laws that would strip that right away.
In recent years, the Court has made a lot of high-profile decisions. Some upheld this tradition. Some tarnished it.
If you care about the fairness of elections, racial disparities in universities, the rights of women, or the future of our planet, you should care about who wins the presidency and appoints the next Supreme Court justices. That means whoever America elects this fall could end up nominating multiple justices.
Since the death of Justice Antonin Scalia in February 2016, the court has deadlocked 4-4 on four cases, including a few big ones. On a number of others, a single vote determined the outcome. In addition, Merrick Garland, the nominee to release to replace Scalia, will still be waiting for review by the Senate on Election Day. Two justices will be in their 80s, and one will be 78. The Republican-controlled Senate is unlikely to confirm any replacement nominated by President Obama in his final months in office, leaving the decision hanging over the presidential campaign and giving the next president an enormous prize the moment he or she is inaugurated.
If a liberal replaces Scalia, it will likely be the biggest ideological swing in the court since Clarence Thomas replaced Thurgood Marshall – and the first time since the 1960s, when Richard Nixon had two early appointments, that the court had a clear liberal majority. There are also a large number of lower-level federal judgeships that are standing open. Finally, it is likely that in the next few years, several Supreme Court justices and a number of district and appeals court judges will retire or pass away.
It is likely that Hillary Clinton or Donald Trump will have at least two or three appointments in their first term. And that will shape a number of important issues, ranging from immigration to racial preferences, as well as the role of unions and environmental issues.
On June 23, 2016. the Supreme Court failed to reach a majority decision on immigration. A vacancy in the nine-member court, resulting from the demise of conservative Justice Antonin Scalia in February, led to the 4-4 decision. A tie decision automatically lets a lower court’s ruling stand, although it would not be establishing a legal precedent for future lawsuits. The decision affected about five million undocumented immigrants.
The 4-4 Supreme Court decision ended President Obama’s executive action, issued in November last year, granting work permit, driver’s license and deportation relief to undocumented parents of American citizens and green card holders (Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA).
The decision also ended Obama’s second DACA executive action, which would grant the same benefits to undocumented adults brought to the U.S. when they were children or minors (Deferred Action for Childhood Arrivals, or DACA). The decision, however, does not affect those who received the benefits under Obama’s first DACA executive action, issued in 2012.
Nineteen states have instituted Religious Freedom Restoration Acts that allow individuals to deny service to anyone if serving them would “violate” their religious beliefs. It’s more serious than not wanting to bake a cake for a gay wedding. Two of those states have included corporations as “individuals” who can also deny service.
North Carolina and Alabama’s bathroom bills and the refusal of some states to recognize that same-sex marriage allows adoption rights are tangled up with the “religious right to refuse.”
North Carolina is also restricting voting rights, after the initial Supreme Court decision that invalidated the necessity of pre-clearance for states with a history of suppressing the voting rights of people of color. The result?
In The New York Times, William Barber II writes, “The law eliminated voting rules that had enabled North Carolina to have the fourth-best per capita voter turnout in the country.”
That same law was upheld in Federal District Court during the last week in April. This voting rights case and others like it will find their way to the Supreme Court next year.
Texas is in the process of limiting access to family planning clinics. Targeted regulation of abortion providers (TRAP) laws are proliferating. If the intention were really to protect women’s health, access to legal and safe abortion would be increasing, rather than access to family planning clinics decreasing.
According to NARAL, “While some TRAP laws have been found legally unenforceable, many TRAP laws have gone into effect and caused clinic closures in several states, severely limiting access to safe and legal abortion care for millions of women. It is clear: the anti-choice movement’s goal is not to protect women’s health; it is to regulate abortion clinics out of existence.”
Oklahoma’s legislature has just voted to criminalize abortion — as though Roe v. Wade had never been passed. Oklahoma is taking the lead, testing the waters, ready to take its new law to the Supreme Court. The Oklahoma House of Representatives has approved the bill; the Senate approved it once and will vote again soon.
The Citizens United decision of 2010 which, for practical purposes, allows corporations to buy elections under the guise of freedom of expression, was concurred in by justices Kennedy, Roberts, Alito, Scalia, and Thomas, all of whom were named to the Court by Republican Presidents.
Hillary Clinton has pledged only to nominate justices who would overturn the court’s 2010 Citizens United decision, which dramatically expanded the flow of money into politics by paving the way for super PACs and direct corporate donations.
“The court is really important in this election, but mainly because there is a potential for getting three seats and because they serve so long, it will have long-lasting repercussions,” said Susan Low Bloch, a professor of law at Georgetown University and former law clerk to the late Justice Thurgood Marshall.
The court can either make America a fairer place or roll back the progress we’ve worked so hard to achieve. It depends on what the court decides. And it depends on all of us.
“If you’re going through hell, keep going.” ~Winston Churchill