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A nation's success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order... The very problems that democratic change brings -- social tension, heightened expectations, political unrest -- are also strengths. Discord is a sign of progress afoot; unease is an indication that a society has let go of what it knows and is working out something better and new.
Those are not the thoughts of a great civil rights leader, nor of a prominent progressive reformer.
They are the words of Justice Sandra Day O'Connor, the "swing" vote on the U.S. Supreme Court, who on Friday announced that she is stepping down. O'Connor joined the court as an ideological conservative and, for the most part, served as such. But, as the above quote from her 2003 memoir, The Majesty of the Law: Reflections of a Supreme Court Justice , suggests, the first woman to serve on the nation's highest court was a conservative of the modern age.
Her nuanced stances on issues such as abortion rights -- she defended the court's 1973 Roe-v-Wade decision legalizing abortion as "a rule of law and a component of liberty we cannot renounce" -- distinguished her from the court's conservative judicial activists, Justice Antonin Scalia and Clarence Thomas.
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. With a court guided by a majority determined to reverse the progress made on issues ranging from reproductive freedom to privacy rights, affirmative action, church-state separation, environmental protection, consumer safeguards and worker rights, Neas warns, America would return to a time when the judicial branch took as its mandate the preservation of the status quo against the march of social progress.
"A Supreme Court with additional justices who do not meet consensus standards could radically rewrite our nation's fundamental definitions of justice," say Neas.
In so doing, it could also rewrite our sense of time. Instead of living in 2005, Americans could find themselves dragged backward to those 19th-century days when the Supreme Court was the nation's primary barrier to social and econonic justice.
People for the American Way has compiled a list of 5-4 rulings in which Sandra Day O'Connor was the decisive justice. Here are some of the 5-4 decisions that the groups says are in danger of being overturned:
- 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.
- 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.
- 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.
- 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.
- Hibbs v. Winn (2004) subjected discriminatory and unconstitutional state tax laws to review by the federal judiciary.
- 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.
- Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) affirmed that civil rights laws apply to associations regulating interscholastic sports.
- 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.
- Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.
- 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.
- 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.
- 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.
- Stenberg v. Carhart (2000) overturned a state ban on so-called partial birth abortion.
- McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses.
John Nichols is The Nation's Washington correspondent.