Of the many disastrous consequences of the Bush reelection to the White House, none are more alarming than the potential impact to the United States Supreme Court. Currently, the Supreme Court is closely divided between liberals and conservatives. One appointment could change the balance of the Court and alter decisions on crucial issues such as abortion, gay rights and the death penalty.
There is a strong likelihood that the next President of the United States will have the opportunity to make at least one appointment to the Supreme Court.
Chief Justice William Rehnquist is ill and may be forced to retire. Justice Stevens is well into his 80s, Justice O'Connor is into her 70s and Justice Ginsburg is becoming more and more frail. With its current membership, the Court has tended to vote 5-4 on many important issues and, luckily for liberals, some key votes have gone their way.
In recent years, Justice O'Connor has been the "swing vote" of the Court. She traditionally leans to the conservative side but has voted with the liberals - Stevens, Ginsburg, Souter, and Breyer - on many closely contested decisions. Although O'Connor's vote is the most difficult to predict, the retirement of any Justice - certainly any liberal Justice - would probably lead to a drastic alteration of the political composition of the Court. The addition of one clearly conservative Justice would mean a fairly consistent majority for that side.
Let's look at some of the issues that hang in the balance. The first is gay rights. There is no question that America's younger generations are far more supportive of gay rights than older generations. While this age difference alone may eventually change laws regarding gay rights, the Supreme Court seems likely to decide a case on gay marriage in the near future. In 2003, the Supreme Court voted 6-3 in Lawrence v. Texas, that a Texas law banning gay sexual acts within the privacy of the home was unconstitutional.
In Lawrence, Justices O'Connor and Kennedy voted with the four liberal Justices to oppose Texas' law. However, one can see from the vitriolic dissent of Justice Scalia where he claims that the Court is signing onto the "homosexual agenda" that the conservatives are not keen on supporting gay rights. The addition of Bush appointees to the Court (i.e. more Scalias and Thomases) would make the fight for gay rights much more difficult.
Next, consider the issue of the death penalty. The Court has been slowly chipping away at America's capital punishment system and looks to be headed towards consideration of the constitutionality of the death penalty. In 2002, the Supreme Court held that the execution of mentally retarded individuals violates the eighth amendment to the constitution (Atkins v. Virginia).
This decision was not only important in limiting the application of the death penalty, but also setting a renewed precedent that the Court could consider death penalty cases based on "evolving standards of decency" in America. During the 2004 term, the Court will consider the constitutionality of executing juvenile offenders. The Court has refused to ban juvenile execution in the past but all the liberal Justices have dissented in those decisions.
Again, with the addition of a conservative Justice to the Court, any further progress towards abolition, or at least restriction, of the death penalty will be far more unlikely.
Lastly, two of the most heavily debated issues are abortion rights and the rights of war detainees. There is a clear split between liberal and conservatives over the right to an abortion.
The current Court will almost definitely maintain the famous Roe v. Wade decision in support of abortion rights. But again, there is little doubt that a Bush appointee would be in favor of restricting abortion rights. In terms of detainees" right to legal counsel and to the judicial system in general, the Court has recently slammed the Bush administration for classifying people as "enemy combatants" and depriving them of constitutionally protected rights. In Rasul v. Bush (2004), the Court, with the conservatives dissenting, held that Guantanamo detainees have access to the U.S. court system. In Hamdi v. Rumsfeld (2004), the Court held 8-1 that Yaser Hamdi's two-year detention without access to the courts or a fair trial violates the Constitution.
On most major issues, there is a clear split between the conservatives and liberals on the Supreme Court. Because at least one Supreme Court appointment will probably occur in the next four years, another term of Bush in office means the coming of a dark era for liberals and for individual rights in general. Bush's preference for judges who are far right ideologically (i.e. Thomas and Scalia) means his appointments are likely to swing the entire the Court to the right.
It will be a scary day if the far right gains complete control of the White House, Senate, House of Representatives, and Supreme Court. It's possible that Ohio may have been the only thing in the way.
-Morgan Macdonald is a senior political science major.
