President-Elect Obama and the strengthened Democratic majority will come to Washington next year with an ambitious agenda and their best shot in a generation at enacting it. Yet while the American people have decisively rejected the policies of the last eight years, federal courts packed with ideological conservatives may prove to be a significant obstacle to the nation's new progressive agenda. George W. Bush has made a mark on the courts that will last for decades, appointing judges who are hostile to enforcing laws that protect employees, consumers, the environment and the poor. This hostility will be felt not just in decisions on the facts of individual cases, but in the narrowing or overturning of federal laws.
As just one example of the damage conservative courts could do, consider the Genetic Information Nondiscrimination Act of 2008 ("GINA"), passed overwhelmingly by the outgoing Congress and signed by President Bush in May. This law was enacted to prohibit employers from hiring and firing employees based on their genetic data. The law is supposed to cover both employees by private businesses and the more than five million state employees across the country. But recent court rulings make it likely that the law's protections for state employees will be ruled invalid.
Why should five million workers be cut out from the law's protection? The Supreme Court has ruled that Congress cannot pass any law protecting state employees without extensive proof that states are violating the Constitution. The Court has already used this logic to partially overturn the Americans with Disabilities Act and the Age Discrimination in Employment Act. Lower courts have also struck down medical leave rights for state workers, and protections against race and sex discrimination for some employees.
Although GINA is detailed and carefully crafted, the committee reports behind it show nothing approaching the meticulous documentation that the conservative justices have demanded. It may be that Congress could have produced a sufficiently extensive record had it tried. Then again, that may well have been impossible, because discrimination based on genetic information is to a large extent a new concern brought about by new technology.
The upshot of the Court's rulings is that, at least when it comes to protections for state employees, Congress can only remedy severe and long-standing problems, and is prohibited from responding to emerging ones. In other words, conservative rulings on state immunity -- which have no grounding in the Constitution - seek to place significant limits both on the way Congress operates and on the issues it can address. These obstructionist rulings may have a loophole: Congress can require states to waive any immunity to the law in exchange for participation in various federally-funded programs. Such waivers have been used several civil rights laws, such as the Title IX, and have so far been accepted by the courts. Unfortunately, GINA lacks this critical language.
Moreover, even savvy legislative drafting is no guarantee that right-wing judges won't knock down pieces of a Democratic agenda -- either by overturning them outright or, more likely, by subjecting them to a death of a thousand interpretive cuts. Look at President-Elect Obama's campaign platform: health care, environmental protection, financial regulation, consumer safety, and civil rights. Existing laws in all of these areas have been undercut and in some instances turned upside-down by Republican-appointed judges. With courts more conservative than ever, new and bolder laws are likely to provoke even bigger clashes.
It is not just "the Supreme Court" that is affected by judicial appointments; the achievements of the political branches are on the line, for it is in large part federal judges who will make it work or make hash of it. Policymakers must draft with this mind, and also must speak out when court decisions undermine their work. Moreover, Congress must monitor the courts, and use its power to overturn decisions that thwart Congress' goals. Federal judges have life tenure, and change through new appointments can happen only gradually. If Democrats are not prepared for a hostile judicial climate, even commanding majorities may not ensure their success.