what's at stake

About an hour after Sandra Day O'Connor's resignation was announced, emails started flooding in, asking "Are You Angry About O'Connor?" and shouting "Save Roe!" I feel sad and frustrated, because Roe is going. The pre-scripted dance of confirmation hearings won't save it.

If you've been reading wmtc, you know I believe that Roe has been practically irrelevant for a long time, and our friends the Democrats did precious little about it. And, militant defender of reproductive freedom though I am, I know that so much more than Roe is on the line. This is a real turning point for the US.

Amid the copious amount of ink being spilled about the Supreme Court vacancy, here are two of the best and most useful pieces I've seen. (Naturally there are zillions more I didn't see.) Unsurprisingly, both are by writers from The Nation.

First, John Nichols reminds us that there is much more at stake that liberal vs. conversative.
With O'Connor's exit, the court will move in one of two directions. No, not right or left. With O'Connor out, the court will either go backward or forward.

If President Bush nominates and the Senate confirms an activist soulmate for Scalia and Thomas, the court will not simply become more conservative.

It will move back toward the days before Presidents Franklin Roosevelt, Harry Truman and Dwight Eisenhower used their nominations in the 1930s, 1940s and 1950s to wrench the judicial branch out of a dark and undistinguished past. Those selections made the Supreme Court a functional branch of government, rather than an obstructionist defender of an often corrupt old order.

People for the American Way President Ralph Neas put it best when he said Friday, "A Scalia-Thomas majority would not only reverse more than seven decades of Supreme Court legal precedents, but could also return us to a situation America faced in the first third of the 20th Century, when progressive legislation, like child labor laws, was adopted by Congress and signed by the President, but repeatedly rejected on constitutional grounds by the Supreme Court."

Neas understands his history well. The contemporary image of the Supreme Court as a defender of civil liberties and civil rights, and an ally of progress, is one that developed over the course of the 20th century. It was not always so. And there are no guarantees that it will remain so.

As such, this is not merely a battle over a court vacancy, nor even over the balance on the bench.

If the court moves backward to the bad old days, so too will the nation.
At the end of the essay, there's a list, compiled by People for the American Way, of 5-4 rulings in which Sandra Day O'Connor was the decisive vote.
1.) Grutter v. Bollinger (2003) affirmed the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and promote racial diversity on campus.

2.) Alaska Department of Environmental Conservation v. EPA (2004) said the Environmental Protection Agency could step in and take action to reduce air pollution under the Clean Air Act when a state conservation agency fails to act.

3.) Rush Prudential HMO, Inc. v. Moran (2002) upheld state laws giving people the right to a second doctor's opinion if their HMOs tried to deny them treatment.

4.) Hunt v. Cromartie (2001) affirmed the right of state legislators to take race into account to secure minority voting rights in redistricting.

5.) Tennessee v. Lane (2004) upheld the constitutionality of Title II of the Americans with Disabilities Act and required that courtrooms be physically accessible to the disabled.

6.) Hibbs v. Winn (2004) subjected discriminatory and unconstitutional state tax laws to review by the federal judiciary.

7.) Zadvydas v. Davis (2001) told the government it could not indefinitely detain an immigrant who was under final order of removal even if no other country would accept that person.

8.) Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) affirmed that civil rights laws apply to associations regulating interscholastic sports.

9.) Lee v. Weisman (1992) continued the tradition of government neutrality toward religion, finding that government-sponsored prayer is unacceptable at graduations and other public school events.

10.) Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.

11.) Morse v. Republican Party of Virginia (1996) said key anti-discrimination provisions of the Voting Rights Act apply to political conventions that choose party candidates.

12.) Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) upheld laws that limit political party expenditures that are coordinated with a candidate and seek to evade campaign contribution limits.

14.) McConnell v. Federal Election Commission (2003) upheld most of the landmark McCain-Feingold campaign finance law, including its ban on political parties' use of unlimited soft money contributions.

15.) Stenberg v. Carhart (2000) overturned a state ban on so-called partial birth abortion.

16.) McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses.
Very serious. Very scary.

On his own website, Nation Washington editor David Corn has some advice for the Democrats. He feels they ought to be careful about their use of the E-word:
Once more--from a political perspective--Democrats and progressives ought to think carefully about how and when they use the charge of extremism. They can only cry "wolf" so many times--even if Bush unleashes a pack of wolverines.
Corn concludes: "All in all, this fight is Bush's to lose" and cautions Democrats and progressives to "devise a damn smart and sophisticated campaign of opposition designed for more than the vacancy of the moment". This doesn't leave me very hopeful.


Sass said...

I haven't been good at keeping up with the news lately, as it's so depressing. But at a friend's house yesterday, I saw that O'Connor retired, I just went "Nooooooooooo........!" No one else got it.

Matt Maldre said...

I like your mentioning of the history behind the supreme court with Roosevelt, Truman and Eisenhower and their nominations. I have an interesting chart over at http://www.spudart.org/supremecourt that shows how many nominations ALL the presidents have had. It's also interesting to note how congress changed the number of justices to avoid Andrew Johnson from being able to nominate someone.

laura k said...

That's quite a site you have there. I see we have at least one thing in common: baseball.

Thanks for the info. I'll be back to read more.