Naming Justices: More Is at Stake Than Roe vs. Wade

SAN FRANCISCO —  The U.S. Supreme Court is emerging as a major issue in this presidential campaign because the next president could have as many as three, perhaps even four court vacancies to fill. But, so far, discussion of the court and potential justices has largely fixated on the matter of abortion and the future of Roe vs. Wade. This is understandable, given the real and symbolic importance of the Roe decision over the past quarter-century. But such a focus is far too narrow.

First, the abortion debate has already been taken into account in the current alignment of voters. Pro-choice has been a central plank of the Democratic platform for some time, and will remain so; the same is true for anti-abortion and the GOP. Thus, if someone cares deeply about preserving or undoing abortion rights, that person is already inclined to the Democratic or GOP candidate.

Second, abortion is no longer where the major action is at the Supreme Court. The GOP-appointed majority on the Rehnquist court is making its mark on jurisprudential history not so much by reining in individual rights (though there is some of that), but rather by reining in federal governmental power vis-a-vis the states. And, most interestingly, the groups hurt by limiting federal power do not fall neatly into either political party. For this reason, discussion by the candidates of the court’s new vision of federal-state relations will be politically important. Times have changed and so, too, must political discourse about the court.

For about a decade, a five-justice majority (Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas) has been handing down decisions that limit federal authority in the name of preserving state sovereignty. To be sure, these cases don’t always involve the same lineup of justices. And the legal doctrinal categories used to organize them can be quite technical, if not downright tedious. But all these decisions share a vision of federalism in which it is the court’s role to shield state governmental prerogatives from federal interference.

This new vision of federalism may be constitutionally correct. Some scholars argue that it is long overdue. But other equally reputable scholars and judges challenge the court’s approach. Because these decisions are being issued over sharp dissenting opinions, a new president’s judicial appointments may determine their future course. Thus, public discussion of this jurisprudence and the candidates’ views on it is clearly warranted.

In addition, and perhaps more interesting as a political matter, the groups hurt by these rulings do not necessarily prefer the candidate most likely to undo these decisions: Democrat Al Gore.

Some examples help illustrate this. Consider women and men concerned about reducing criminal assaults. In a highly publicized case during the term that just ended, the court struck down the Violence Against Women Act, a congressional attempt to protect victimized women by providing recourse in federal courts to supplement inadequate state court remedies. In striking down the federal law, the court made clear that the undeniable cumulative impact of crime and violence on the national economy could not justify federal legislation in an area traditionally the domain of states.

Next consider religiously observant persons and the Religious Freedom Restoration Act, a federal law that required state governments to grant limited exceptions from generally applicable state laws to persons violating these laws because of religious convictions. Under this law, houses of worship might be exempt from burdensome regulations that interfere with a congregation’s right of religious assembly. But the court invalidated the law in 1997, saying it infringed on state governmental freedom from federal domination. Congress’ current efforts to enact a revised law under the federal government’s authority to regulate commerce (a basis not used in the first one) will likely be foreclosed by the reasoning of the violence-against-women case.

Now turn to the elderly. They were hurt by a case involving the Age Discrimination in Employment Act, a federal statute preventing employer discrimination against persons over 40 on the basis of age. The court held in January that the statute could not be used to sue a state employer for money damages in federal court, even if the illegally terminated elderly employee lost thousands of dollars in wages and was forced to deplete his retirement savings as a result of the state employer’s unlawful actions. If the state refuses to submit to such a suit for redress, its refusal will be upheld out of respect for state governments and their coffers.

Finally, think about holders of intellectual property rights. Last term, the court held that state entities, such as public universities, cannot be sued for damages in federal court even when they intentionally and egregiously usurp federal patents owned by individuals, causing millions of dollars of harm. Once again, the court said that protecting treasuries of state governments from unanticipated depletions trumps any federal interest in compensating victims of property deprivations.

The groups hurt by these decisions--persons affected by violence, the religiously observant, elderly employees and patent holders--do not fall neatly within either the Democratic or Republican Party. Just like the constitutional rulings affecting their interests, these groups are in play, so to speak, and would presumably be interested in the candidates’ views on the trends reflected in the court’s recent decisions.

Nor does it help to point out that, over the past 20 years, the Republican Party has been committed to the principle of shifting authority from Washington back to the states. This approach has focused on whether it is good policy for Congress to enact certain kinds of laws or whether it makes sense to leave certain areas to state regulation. Yet, the question the court has been answering is quite different: namely, whether the federal government has the power to act, even if the policy wisdom of federal action is plain. In fact, many Republicans in Congress voted for the federal laws that the court struck down. On this latter question--of federal constitutional authority--neither the parties nor their leading candidates have expressed any clear views.

Sooner or later, they will have to. The Constitution does far more than protect the reproductive rights of women. Presidential candidates should recognize this and begin to address what the other 99% of the Constitution would mean if they are given the power to replace one-third or more of the court. *