Conservative Majority in Supreme Court Threatens Our Politics and Most Basic Freedoms

by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ian Milhiser, and Zaid Jilani


October 5 marks the beginning of a new Supreme Court term, a session that will marked by high-profile cases that the Court's conservative majority could use to reshape the law. In its first full term together, the Roberts Court's conservative bloc immediately began cutting back on women's reproductive freedom, entrenching public school segregation, and undermining equal pay in the workforce, among other things, prompting retired Justice Sandra Day O'Connor to comment that she fears that some of her decisions "are being dismantled" by the current, more conservative-leaning court. "If you think you've been helpful, and then it's dismantled, you think, 'Oh, dear,'" she said. "But life goes on. It's not always positive." Yet while the conservative justices are perfectly willing to thumb their noses at precedent, they occasionally restrain themselves from politically-charged rulings likely to inspire a congressional backlash. Last term, for example, the Court pleasantly surprised the civil rights community by resisting the temptation to eviscerate two landmark prohibitions on race discrimination. This term, the Court has already agreed to hear more potentially-earthshaking cases than it has in years; the only question is how aggressive the Court will be in pushing its right-wing agenda.

PLAYING TO THE BASE: No one was more excited about President Bush's appointees to the Supreme Court than the right-wing "Justice Sunday" crowd, which crowed that by confirming Bush's judges, conservatives could "bring the rule and reign of the Cross to America and we can change America on our watch." This term, the conservative majority Bush built has plenty of opportunities to reward these supporters. The most famous case on the Court's docket is McDonald v. City of Chicago, which could overrule a 123 year-old rule holding that the states are free to regulate firearms. Conservatives, however, have far more than guns at stake this term. In United States v. Comstock, Chief Justice John Roberts and Justice Samuel Alito will have their first opportunity to weigh in on the scope of Congress' power to enact laws that substantially affect interstate commerce. Should the Court roll back Congress' power, they would delight "tenthers" enraptured by the notion that every law conservatives disagree with somehow violates Congress' constitutional authority. Additionally, in a case called Salazar v. Buono, the Court could tear down the wall of separation between church and state. For years, O'Connor was the key fifth vote upholding the Constitution's ban on government endorsements of religion, and Alito is widely expected to provide the final vote to allow this ban to be whittled away into near non-existence.

A NEW BALANCE OF POWER: Two cases this term could also completely rework American election law, handing powerful conservative interests unprecedented power to manipulate elections. The first is Citizens United v. FEC, in which the conservative bloc appears poised to overrule a century-old rule permitting laws limiting the influence of corporate money in politics. Should the Court gut this rule, as it is widely expected to do, the health insurance industry will be free to spend billions to defeat lawmakers who support meaningful health reform; the tobacco industry will have free reign to spend limitless sums to elect politicians who will immunize them from accountability under the law; and Wal-Mart will be free to unleash its massive treasury to help elect a Congress which will strangle unions and freeze or eliminate the minimum wage. Also looming is the Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, which concerns the power of Congress to create "independent agencies" whose members cannot be fired at the whim of the president. Should the Court gut Congress' power to create such agencies, the next Karl Rove could pressure the FCC to fine the Rachel Maddow Show while ignoring the antics of Glenn Beck, and he could strongarm the FEC into manipulating elections to benefit a future president's party.

THE ILLUSION OF JUSTICE: Another unfortunate pattern in the Roberts Court's decisions is a belief that justice has been served if a rigid set of technical rules has been complied with. Thus, the conservative bloc held in its first full term together that an inmate who filed court documents two days late lost his right to appeal -- even though the untimely filing was caused by erroneous instructions from a federal district judge. Similarly, the Court held earlier this year that a potentially innocent man has no right to access DNA evidence that could exonerate him of a 1993 rape and kidnapping, even though he offered to pay for DNA testing himself. This term, several cases will show whether the justices still believe that unyielding rigidity is a substitute for justice. Among these are Wood v. Allen, which asks whether a capital defendant's right to an attorney was met when his life was placed in the hands of a brand new lawyer with little or no criminal experience, and Pottawattamie County v. Harrington, which asks whether a general rule protecting prosecutors from lawsuits also immunizes them from accountability when they willfully fabricate evidence against a defendant.

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