As the media focuses on Donald Trump’s sexually predatory behavior and Hillary Clinton’s Wall Street speeches, the future of the Supreme Court has received only an occasional mention. During the final presidential debate, the topic was finally given some attention.
When asked about late-term abortion, Clinton said Roe v. Wade “very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother is taken into account.” Trump responded with the incendiary retort, “If you go with what Hillary is saying, in the 9th month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby.”
What Trump was actually describing was a C-section, which would result in the birth of a live baby.
An examination of how the two candidates’ judicial nominees would likely vote on critical issues the high court will face reveals the enormous stakes in the upcoming presidential election.
Trump and Clinton’s choices for Supreme Court justices could not be more philosophically dissimilar.
While Clinton has not provided names, she has stated that she will nominate justices who will uphold abortion rights, women’s rights, workers’ rights, voting rights, marriage equality and affordable health care; provide relief for DREAMers and the parents of US citizens and lawful permanent residents; and overturn Citizens United.
Trump has vowed to nominate justices in the mold of Antonin Scalia. The late justice favored unlimited corporate election spending. He opposed reproductive rights, universal health care, same-sex marriage, affirmative action, voting rights, immigrants’ rights, labor rights, LGBTQ rights and environmental protection. Scalia wrote the decision that concluded, for the first time, that the Second Amendment grants each individual (rather than “a well-regulated militia”) the right to bear arms.
Trump indicated his intent to change the law through his judicial appointments, to overturn Roe v. Wade and “allow the states to protect the unborn.”
After consulting with the right-wing Federalist Society and Heritage Foundation, Trump released lists of names from which he intends to select his judicial nominees. Their writings and judicial decisions demonstrate open hostility toward reproductive rights, affordable health care, consumer protections, criminal defendants, voting rights, workplace safety and LGBTQ rights.
The Future of the Supreme Court Hangs in the Balance
The Court is evenly divided, 4-4, between liberals and conservatives. Scalia’s vacant seat will be filled by the next president. Three of the current justices are 78 or older. That means, if the new president serves two terms, he or she will likely nominate three or four justices to the Court.
If Clinton is elected, she would restore a liberal majority to the Court for the first time since 1969. “For the first time in decades, there is now a realistic chance that the Supreme Court will become an engine of progressive change rather than an obstacle to it,” Jeffrey Toobin wrote in the New Yorker.
Many white evangelicals, whose primary goals are outlawing abortion and same-sex marriage, understand this well. That is why, in an effort to keep a conservative Supreme Court, most of them will still vote for Trump, notwithstanding the almost daily groping allegations emerging against him. If progressives refuse to vote for Clinton and Trump wins, the negative fallout will affect the lives of people in this country for decades.
“Collectively, these individuals reflect a radical-right ideology that threatens fundamental rights and legal protections, and that favors the powerful and privileged over everyday Americans, especially those from historically marginalized communities,” according to the Alliance for Justice. “The list has very little diversity, with only three women, no people of color, and no one who has worked as a public defender or civil rights attorney.”
Here is a sampling of Trump’s prospective judges’ records on reproductive rights, workers’ rights, discrimination and voting rights, guns, criminal procedure, environmental rights and the death penalty:
William H. Pryor, Jr., a judge on the Eleventh Circuit Court of Appeals, calledRoe v. Wade one of “the worst examples of judicial activism,” saying that “seven members of [the Supreme Court] swept aside the laws of the fifty states and created ― out of thin air ― a constitutional right to murder an unborn child.”
Steven Colloton, a judge on the Eighth Circuit, joined the only circuit court opinion to rule that the Affordable Care Act’s birth control accommodation for religious non-profit organizations (religious colleges and hospitals) creates a substantial burden on religious practices.
Raymond Gruender, also of the Eighth Circuit, wrote that employers who deny contraception coverage (except for purposes like hormone regulation) don’t violate the Pregnancy Discrimination Act. Gruender also authored two opinions holding that a state can pass a law requiring a woman to sign a statement that says “the abortion will terminate the life of a whole, separate, unique, living human being” and “the pregnant woman has an existing relationship with that unborn human being.”
Thomas Lee, of the Utah Supreme Court, wrote that a fetus is a “child” under Utah’s wrongful death statute.
Diane Sykes, of the Seventh Circuit, wrote that the Affordable Care Act’s mandate to provide contraceptive coverage “substantially burdens” the religious practice of for-profit corporations (later endorsed by a divided Supreme Court in Burwell v. Hobby Lobby).
Neil M. Gorsuch and Timothy M. Tymkovich, of the Tenth Circuit, agreed in the circuit court decision in Hobby Lobby that corporations are persons exercising religion for purposes of the Religious Freedom Restoration Act. Tymkovich also argued that Colorado could deny Medicaid funding to poor women who seek abortions resulting from rape or incest.
Charles Canady, of the Florida Supreme Court, popularized the term “partial-birth abortion.” When he was a congressman, Canady wrote a bill, later vetoed by President Bill Clinton, severely limiting a woman’s right to abortion.
Steven Colloton wrote two decisions that, together, reversed $24 million in awards to workers for unrecorded time putting on and taking off work equipment, in violation of the Fair Labor Standards Act.
Raymond Kethledge, of the Sixth Circuit, upheld an anti-union Michigan law that targeted public school employees for retaliation if they opposed anti-union legislation.
Discrimination and Voting Rights
William H. Pryor, Jr. signed an opinion stating that a supervisor’s use of the word “boy” directed at an African American employee was just “conversational” and one of some “ambiguous stray remarks” unrelated to employment decisions. Pryor often dissents from decisions upholding relief for plaintiffs who allege discrimination, including a case in which a woman alleged retaliatory firing for claiming sexual harassment after being fired by the manager she accused of misconduct. He has also upheld discriminatory voter ID laws that disenfranchise minority voters, and protected large corporations from paying punitive damages.
Diane Sykes reinstated Wisconsin’s voter ID law even after a trial court found it “results in the denial or abridgment of the right to vote on account of race or color.” She also defended the right of anti-gay groups to receive government subsidies, and forced Southern Illinois University to recognize the Christian Legal Society as a student organization even though it prohibited gay students from being voting members or serving in leadership positions.
Timothy M. Tymkovich said that local ordinances prohibiting discrimination based on sexual orientation gave “special rights” to LGBTQ people.
Robert Young, of the Michigan Supreme Court, upheld Michigan’s voter ID law, saying it was “nondiscriminatory.”
Charles Canady, as a congressman, voted for the Defense of Marriage Act (banning same-sex marriage for federal law purposes).
Diane Sykes wrote an opinion overturning a ban on firing ranges within city limits.
Timothy M. Tymkovich opposed Denver’s efforts to restrict assault weapons.
Thomas Hardiman, of the Third Circuit, wrote that New Jersey could not require people to demonstrate a “justifiable need” for a gun before being issued a license to carry a handgun in public.
William H. Pryor, Jr. said that Miranda v. Arizona, which held that police must advise suspects in custodial interrogation of their rights to remain silent and to an attorney, was one of the “worst examples of judicial activism.”
Thomas Hardiman wrote two opinions allowing correctional officers to conduct strip searches of inmates accused of minor offenses.
Timothy M. Tymkovich limited the ability of environmental groups to stop corporations from inflicting environmental harm.
William H. Pryor, Jr. took anti-environmental positions during his tenure as Alabama Attorney General.
The Death Penalty
Steven Colloton wrote an opinion prohibiting prisoners from learning the identities of the physician, laboratory and pharmacy involved in carrying out Missouri’s execution protocol.
Charles Canady voted to uphold a death sentence, later overturned by the Supreme Court, with even Chief Justice Roberts and Justices Scalia and Thomas concluding that Florida’s sentencing law was unconstitutional.
The Stakes Could Not Be Higher
This election will not simply determine the Supreme Court’s resolution of important issues for the next four years. The new president will change the Court’s ideological makeup for the next four decades. Its decisions will affect workers, consumers, immigrants, voters, people of color, LGBTQ rights, taxpayers, reproductive rights, affirmative action, health care, criminal defendants, guns and the environment. That includes all of us. Progressives should ponder this reality as they decide if and how to cast their votes.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She writes, lectures, and does media about the civil rights, civil liberties, and the Supreme Court. Follow her on twitter @marjoriecohn.
Copyright Truthout. Reprinted with permission.
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