THE BLOG
10/25/2012 12:16 pm ET Updated Dec 25, 2012

The Supreme Court: The Elections and Beyond

Just a few elections ago, I remember people wore button that said, "It's the Supreme Court, stupid." But during this fall election season, the future of the Supreme Court has received very little mainstream attention, even though decisions by that august body have an impact that can last far longer than the term of a member of the House or Senate and certainly longer than that of any single president. On the current court, four justices are 74 years old or older -- two from each side of the ideological divide, and it is quite likely the next president will pick at least one new one.

What hangs in the balance? Many issues but of particular note is: Roe v. Wade. It need not be completely overturned for abortion to become out of reach for the vast majority of American women, or to undermine their autonomy in making this most personal decision. In fact 87 percent of all U.S. counties -- counties in which 35 percent of all women in the US now live -- already lack an abortion provider. Efforts to make abortion even more inaccessible continue apace, with many states passing huge increases in anti-abortion regulations after the election of 2010. The fate of those laws with this Supreme Court remains to be seen, but should any of them reach the court, a majority may well seize the opportunity to strike down Roe in its entirely or eviscerate it beyond recognition.

Years of progress on keeping the principle of separation of religion and state alive and well is also endangered. Despite a track record in the law that upholds government enforcement of anti-discrimination laws regardless of religious belief -- for example, you can't refuse to serve an African-American a cup of coffee based on a biblical belief of inferiority -- the current court may give employers the right to cite their religious beliefs as a justification for discriminating against women by denying them insurance coverage for contraceptives, even when the employer isn't paying for it.

Other reforms of the mid-20th century are also at stake. Laws that finally made it illegal to discriminate on the basis of race, religion, gender, and national origin are under attack. The basic principles may remain, but the ability to enforce them has repeatedly been weakened by the Supreme Court, most recently in the Lilly Ledbetter case when the court rendered an unreasonably narrow interpretation of the federal law against job discrimination. The long Supreme Court campaign against affirmative action could produce another setback by spring in Fisher v. Texas case heard October 10, if efforts to achieve diversity in higher education are overturned.

Voting rights protections, the bedrock of the 1960s civil rights revolution, are being unraveled in many states, and appeals to the Supreme Court are certain to happen in the next session. The new state laws undermine the idea that government should make voting as easy as is reasonably possible. The Supreme Court's faulty 2008 decision in Crawford v. Marion County Election Board, an Indiana case upholding photo ID requirement without any inquiry into their chilling effect, has reaped a whirlwind of efforts to disfranchise millions.

The Supreme Court's willingness to reverse long-standing precedent in the service of an ideological agenda is epitomized by its decision in Citizens United where the court went out of its way to rule that corporations have the same free speech rights as living people. That ruling overturned a principle of 70 years' standing and unleashed a flood of money into the election process that eclipses the Watergate era and has seriously altered the political landscape of this election.

A look back at the last decade is not encouraging to those who believe as I do that our courts should dispense justice in keeping with the progress we have made in upholding individual rights, ending discrimination, and adhering to our founding principles of liberty and justice for all. Often we can't quite put our finger on the correlation between a judge's background and life experiences and the rulings rendered by the courts on which he or she presides. But it is surely there. It is widely conceded that a majority of those who sat on the Supreme Court before the Civil War were in fact slaveholders. It's pretty hard to imagine that their decisions weren't influenced by that fact. The first black justice, Thurgood Marshall, did not serve until 1967; the first woman, Sandra Day O'Connor, not until 1981. Their life experiences, for centuries excluded from our judicial system, were certainly linked to their legal decision-making.

Today with the court polarized, every presidential nomination to the Supreme Court matters. Each can help further the progress our country has made in achieving equality and justice, or transport us back to a time when the courts ignored the rights of women and African Americans, of religious and ethnic minorities, of criminal defendants and others to equal treatment and due process. As voters, we bear the ultimate responsibility for making sure we know what kind of justice the candidates for president would likely appoint.