Tipping the Scales: Conservative Appointments Threaten Supreme Court's Balance

The shoe-in for the next Chief Justice of the Supreme Court may have evaded the tough questions posed by the Senate Judiciary Committee, but based on the few documents the White House agreed to make public, it is clear that John Roberts is indeed the “ideologue” he explicitly claims not to be. Having publicly stated his position on civil and constitutional rights issues such as abortion, domestic violence, voting rights, desegregation, low-income housing, gender discrimination, affirmative action, sexual harassment, and school prayer, Robert’s views have sent up red flags for those who believe in the constitutional protection of women’s and minority’s rights and economic justice.

Roberts’ appointment will pose challenges to more than just individual and civil liberties; it will also directly impact key federal issues that eked by on 5-4 rulings, where O’Connor’s vote determined the outcome. The results of some of these key cases are outlined below:

Reproductive Rights and Privacy
Stenberg v. Carhart (2000) overturned a state law that would have had the effect of banning abortion as early as the 12th week of pregnancy and that lacked any exception to protect a woman’s health.

Environmental Protections:
In the Alaska Department of Environmental Conservation v. EPA (2004) decision, O’Connor’s vote determined that when a state conservation agency fails to act, the EPA could intervene to reduce air pollution under the Clean Air Act.

Consumer Protections
In the Rush Prudential HMO, Inc. v. Moran (2002) decision, the Supreme Court ruling upheld state laws giving people the right to a second doctor’s opinion if their HMO’s tried to deny them treatment.

Sex Discrimination
Jackson v. Birmingham Board. Of Education (2005) ruled that federal law protects against retaliation against someone for complaining about illegal sex discrimination in federally assisted education programs.

Disability Rights
Tennessee v. Lane (2004) upheld the constitutionality of Title II of the Americans with Disabilities Act and required that courtrooms be physically accessible to the disabled.

Affirmative Action
Grutter v. Bollinger (2003) affirmed the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and promote racial diversity on campus.

Discrimination
Morse v. Republican Party of Virginia (1996) said key anti-discrimination provisions of the Voting Rights Act apply to political conventions that choose party candidates.
Hunt v. Cromartie (2001) affirmed the right of state legislators to take race into account to secure minority-voting rights in redistricting.
Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.

Separation of Church and State
McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses.
Lee v. Weisman (1992) continued the tradition of government neutrality toward religion, finding that government-sponsored prayer is unacceptable at graduations and other public school events.

Government Accountability
McConnell v. Federal Election Commission (2003) upheld most of the landmark McCain-Feingold campaign finance law, including its ban on political parties’ use of unlimited soft money contributions.
Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) upheld laws that limit political party expenditures that are coordinated with a candidate and seek to evade campaign contribution limits.

Many of Roberts’ previous rulings and statements support his opposition to the outcomes of the above cases. In a brief for George H.W. Bush’s administration that Roberts co-authored for the respondent Rust in Rust v. Sullivan, he states that, “We continue to believe that Roe was wrongly decided and should be overruled.”

In public statements on “Talk of the Nation”, 6/24/99 and on “News Hour” with Jim Lehrer, 7/2/97, Roberts denies Congress’ authority to support state employees’ rights to sue their employers for refusing to pay overtime, to endorse the protection of the victims of gender-motivated violence, to require background checks of gun buyers by local police, and to further defend the right to religious expression.

Robert’s lack of support for women who seek sexual harassment suits is exampled in a friend-of-the-court brief, which stated that a 1972 law that banned sex discrimination in schools could not be used to allow a girl to sue a teacher who had repeatedly sexually harassed her for compensatory damages.

He also argued in favor of the expansion of the role of religion in public schools. In his friend-of-the-court for Lee v. Weisman (1992) he affirmed that religious prayers in graduation ceremonies at public high schools should be allowed.

While Roberts clearly would like to limit protecting Federal controls over the previously mentioned issues, he has put forth rulings and opinions that indicate his strong support for expanding the powers of the executive branch. In a recent D.C. court decision, Hamdan v. Rumsfeld (2005) Roberts ruled that the Geneva Convention is unenforceable in U.S. courts and adopted the Bush administration’s position that once accused, enemy combatants can be tried before military courts without fundamental routine protections that are afforded to U.S. citizens.

Whether it is limiting civil liberties or federal jurisdiction, Roberts’ future, and pivotal votes, will surely be in opposition to O’Connor’s record, and thus may put into question the very cornerstones of modern American justice.