What's at Stake
A number of matters of tremendous importance to the civil rights community currently hang in the balance, given the sharply divided makeup of the U.S. Supreme Court. As shown by the narrowly decided cases below, future appointments to the Court will tip the scales, in one direction or another, for many decades to come.
The addition of one or two more judges who agree with Justice Scalia and Thomas in long-settled areas of civil rights law would place many fundamental rights at risk and leave vulnerable populations without any remedy for civil rights violations.
The reversal of the Court's decision in Chisom v. Roemer (1991) would exempt state elections for judges from the Voting Rights Act's prohibitions against race discrimination. And if Morse v. Republican Party of Virginia (1996) were reversed in the way that Justices Scalia and Thomas would prefer, the anti-discrimination requirements in section 5 of the Voting Rights Act would not apply to party conventions that select the nominees for office.
In Alexander v. Sandoval (2001), a 5-4 decision written by Justice Scalia, the Court severely limited the reach of Title VI of the Civil Rights Act of 1964 by holding that individuals could not sue directly to enforce regulations based on a disparate impact standard, raising the bar to require a showing of intentional discrimination. The decision, which contravenes decades of established practice, makes it far more difficult for individuals to seek relief from violations of Title VI.
Rights of Gays and Lesbians
If the Court were to reverse Romer v. Evans (1996), which struck down a Colorado measure that prohibited local anti-discrimination ordinances, it could become illegal for governments or agencies to provide even the most basic anti-discrimination protections to gays and lesbians. And if the Court were to reverse Lawrence v. Texas (2003), states would be able to invade bedrooms and criminalize adults for their private, consensual sexual behavior.
If the Scalia-Thomas-Rehnquist dissent in J.E.B. v. Alabama (1994) were to become the state of the law, gender discrimination in jury selection would become permissible. And adoption of the dissenting position in Davis v. Monroe County Bd. of Ed. (1999) would prevent Title IX from protecting students from sexual harassment or other types of discrimination at the hands of other students.
It would only take one vote for the Court to reverse its recent landmark decision in Grutter v. Bollinger (2003), which reaffirmed the legality of affirmative action programs aimed at improving diversity in student bodies.
A change in the court could lead to a reversal of Atkins v. Virginia (2002), leading the Court to declare that the execution of people with severe mental retardation does not amount to "cruel and unusual punishment" as prohibited under the Eighth Amendment.
A reversal of Zadvydas v. Davis (2001) would allow the indefinite detention, perhaps for life, of legal immigrants who face deportation but who cannot be returned to their native countries. And the dissenters in INS v. St. Cyr (2001) would simply close the courthouse doors completely to immigrants who sought help in cases with such constitutional issues.
Federalism and States' Rights
In a series of close decisions, the Supreme Court has already transformed the legal landscape regarding the ability of Congress to provide effective remedies for civil rights violations, jeopardizing forty years of progress toward achieving equal justice for all. Adding more justices like Scalia and Thomas would extend this dangerous trend even further.
Limiting Discrimination Suits Against State Employers
The Supreme Court, by a narrow 5-4 majority, issued two decisions that drastically limit the rights of state employees to vindicate their civil rights. In Alabama v. Garrett (2001), the Supreme Court held that state employers can no longer be sued for money damages under the Americans with Disabilities Act (ADA) for discriminating against persons with disabilities. Similarly, in Kimel v. Florida Board of Regents (2000), the Court held that state employers could not be sued under the Age Discrimination in Employment Act (ADEA) for discrimination against individuals based on their age.
Limiting Congress' Power to Protect Women Against Gender-Based Violence
The 5-4 majority in United States v. Morrison (2000) held that the civil remedies provided under the Violence Against Women Act, which provides a federal civil remedy for the victims of gender-motivated violence, were unconstitutional.
Expanding the Eleventh Amendment's Insulation of States
In Federal Maritime Commission v. South Carolina State Ports Authority (2002), the Court, in an opinion written by Justice Thomas, significantly expanded the reach of the Eleventh Amendment to apply to administrative proceedings (which are nowhere mentioned in the text of the amendment), holding that state sovereignty barred federal administrative agencies from adjudicating a private party's complaint against a state.
Federal Preemption in Certain Cases
In Rush Prudential HMO, Inc. v. Moran (2002), Justice Thomas wrote a dissent, joined by Justices Scalia, Rehnquist, and Kennedy, which would have invalidated a state patients' rights law on the grounds of federal preemption. This narrow victory for protecting the rights of individual Americans could be in jeopardy with the addition of another far right conservative to the Court.
Workers' rights would be under significant assault under a Court dominated by the appointment of more members who agreed with Justices Scalia and Thomas.
A Scalia-influenced court would expand employers' ability to refuse to bargain with employees' duly elected union representatives, thereby weakening employees' rights to strike and bargain collectively. NLRB v. Curtin Matheson Scientific, Inc. (1990).
A Scalia-Thomas majority would dramatically increase the number of situations where an employee or contractor could be terminated for expressing political opinions. See, e.g., Rutan v. Republican Party of Illinois (1990).
The Thomas-Scalia dissenting position in EEOC v. Waffle House (2002) would allow employers to evade employment discrimination lawsuits brought by the Equal Employment Opportunity Commission (which Thomas previously chaired) by simply forcing employees to sign mandatory arbitration clauses in employment contracts.
The Court has already undermined workers' rights in Hoffman Plastic Compounds, Inc. v. NLRB (2002), where it ruled that the right of workers to be fully compensated for unlawful labor practices by their employers could depend on their immigration status.