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Caroline Fredrickson Headshot

Protecting Progressive Policy Requires a Balanced Supreme Court

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For years, conservatives have been making courts, particularly the U.S. Supreme Court, a priority on their agenda. Given the Court's 5-4 ideological divide, it's time for progressives to catch up. The Supreme Court and federal courts across the country answer legal questions and determine the fate of policies that affect all of us. This term alone, the justices will be weighing decisions about equality in education, voting rights, national security and, quite possibly, marriage equality. A change of even one vote on the Court could impact some of the most important issues this country faces.

Here's where we stand now on just a few of the key issues and what's at stake in the future:

  • Commerce Clause: In NFIB v. Sebelius, we saw the Court cobble together a majority to uphold an integral provision of the Affordable Care Act under Congress's power to tax, but the conservatives on the Court rejected the federal government's argument that the law's minimum coverage provision was a valid exercise of Congress's power to regulate interstate commerce. (The health care industry is massive, representing nearly 18 percent of the nation's economy.) Instead the Court's rightwing bloc appears eager to turn the clock back on decades of well-settled law that gives Congress the power to regulate commerce. An additional conservative justice could help the Court's conservative bloc return to a time when radical individualism trumped the concerns of community, and social safety net laws such as Medicare and Social Security would likely become vulnerable to attacks that they exceed Congress's power to regulate commerce. For that matter major civil rights legislation that prevents businesses from discrimination in hiring and firing of workers might also be vulnerable to such challenges.
  • Campaign Finance: In 2010, the Court ruled that corporations have the same speech rights as individuals, permitting their unlimited donations to political causes in Citizens United v. Federal Election Commission. The decision gave unprecedented power for those with money to have their voices heard while simultaneously ensuring ordinary Americans would have a more difficult time participating in the political process. The 5-4 decision contributed to our country's first multi-billion dollar campaign cycle. The Court's decision in Federal Election Commission v. Wisconsin Right to Life, Inc. in 2008, coupled with Citizens United, has paved the way for the massive number of attack ads we're being subjected to in the lead up to the election next week. A more progressive Supreme Court could help make elections fair and accessible to all Americans.
  • Reproductive Rights: As recently as 2007, the Court upheld burdensome restrictions on abortion rights in Gonzales v. Carhart, banning late-term abortions and reversing a previous decision in Stenberg v. Carhart (2000). A more conservative Court could easily further restrict women's reproductive rights, chipping away at Roe v. Wade or undoing it altogether. Much may hinge on a previous decision the Court made in 1992 in Planned Parenthood v. Casey. In that decision, the Court reasserted the "essential holding" of Roe v. Wade but introduced a new constitutional standard under which restrictions on reproductive rights would be struck down if they presented an "undue burden" on a woman's right to terminate her pregnancy. Since then, the Court has held that while spousal notification laws present such an undue burden, waiting periods, parental consent laws and informed consent requirements do not.
  • Equality in Education and Employment: In October, the Court heard arguments in Fisher v. University of Texas, and its ruling could have a big effect on college admissions and diversity. Earlier, in 2003, the Court voted 5-4 to uphold the University of Michigan Law School's policy which used applicants' race as a factor for admissions. However, in a more recent test, in Parents Involved in Community Schools v. Seattle School District No. 1 in 2007, the Court weighed in on attempts to ensure racial integration in education by prohibiting the assignment of students to public schools by a vote of 5-4. A more progressive Supreme Court would continue the long march toward equality by encouraging diversity and racial integration in our nation's schools.
  • Voting Rights: In the 2009 case Northwest Austin Municipal Utility District No. 1 v. Holder, the Court declined to consider the constitutionality of the pre-clearance provision in the Voting Rights Act (VRA). The provision requires jurisdictions with a long history of discrimination to obtain federal approval of their voting procedures. However, there are several cases looming that could give the Court a chance to weigh in on the provision in the future. A more conservative Supreme Court would likely curtail the VRA and weaken long-standing efforts to prevent and end voting discrimination.
  • Sentencing Disparities: After Congress acted to reduce the discriminatory mandatory minimum sentencing gap between powder cocaine and crack cocaine with the Fair Sentencing Act, the Court made the more lenient sentencing retroactive in Dorsey v. United States (2011). However, the conservative members of the Court argued, based on an 1871 law, that any penalty provision previously levied could not be undone. A more progressive Supreme Court might clarify and expand protections for individuals navigating the criminal justice system.
  • Separation of Church and State: In two 5-4 decisions, the Supreme Court demonstrated the decisions implicating religion and politics often rest on very fine lines. In McCreary County v. ACLU of Kentucky (2005), the Court narrowly found that a Ten Commandments monument in a Kentucky courthouse had the purpose of advancing religion, and struck it down as offending the Establishment Clause. However, on the same day McCreary County came down, the Court issued a ruling in Van Orden v. Perry, which involved a Ten Commandments monument on the grounds of the Texas State Capitol. In that case the Court ruled that the display was constitutional. A more conservative Supreme Court might weaken or end the separation of church and state and further entangle religion with politics.

Though the Court may not address all of the matters this term, it is likely that future Courts - whatever their makeup - will be ruling on many of these crucial issues, and the future of so many of our rights and liberties hang in the balance.