Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself

Why The Most Urgent Civil Rights Cause Of Our Time Is The Supreme Court Itself

ByRICHARD L. HASEN (U.C. Irvine)4324 Views

The future composition of the Supreme Court is the most important civil rights cause of our time. It is more important than racial justice, marriage equality, voting rights, money in politics, abortion rights, gun rights, or managing climate change. It matters more because the ability to move forward in these other civil rights struggles depends first and foremost upon control of the Court. And control for the next generation is about to be up for grabs, likely in the next presidential election, a point many on the right but few on the left seem to have recognized.

When the next President of the United States assumes office on January 20, 2017, Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all of these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

The stakes are high. On non-controversial cases, or cases where the ideological stakes are low, the Justices often agree and are sometimes unanimous. In such cases, the Justices act much like lower court judges do, applying precedents, text, history, and a range of interpretative tools to decide cases. In the most controversial cases, however—those involving issues such as gun rights, affirmative action, abortion, money in politics, privacy, and federal power—the value judgments and ideology of the Supreme Court Justices, and increasingly the party affiliation of the president appointing them, are good predictors of each Justice’s vote.
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What happens when Kennedy and the other older Justices leave, potentially shifting the balance of power? Under a more conservative Supreme Court, abortion could become all but impossible to obtain, at least in red states. More reasonable gun control laws could fall to Second Amendment challenges, and the Environmental Protection Agency’s power to protect our air and water further diminished. The Court could allow the wealthy to give $1 million contributions or more directly to candidates. It could declare unconstitutional more affirmative action plans and voting rights protections. Congress’s power to combat climate change could be undermined, unions deprived of power, and consumer protections further gutted.

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