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The Threat: Nine Secretive Judges
and a Bush Presidency

Compiled by GayToday
People for the American Way

Americans' rights and freedoms could become less secure during this latest Supreme Court term, which began October 2, and individual rights could take even more of a beating if the President-elect replaces moderate and conservative Justices with others in the right-wing mold of Justices Thomas and Scalia, a new report warns. justicescalia.jpg - 10.62 K Justice Scalia

Rights and Freedoms on the Line: A Preview of the 2000-01 Supreme Court Term and Beyond (
) examines three categories of cases in order to plot the Court's trajectory over both the immediate and the longer term.

It discusses key cases that the Court has already agreed to review and others it has been asked to hear but has not yet agreed to take up. In addition, the report looks at important lower court cases that are expected to start arriving at the Supreme Court as early as next year and it assesses the impact a potential Scalia-Thomas majority would have on the rights and freedoms at stake in those cases.

It looks at cases involving issues of civil rights and discrimination, reproductive freedom and privacy rights, free speech and the First Amendment, gun control and campaign finance reform.

If the new term follows the Court's recent rightward trend, it is likely to be marked by a continued chipping away at Congress' power to protect Americans' individual rights from encroachment or abuse by the states, according to People For the American Way's analysis, and the cases before the Court provide ample opportunity for it to do so.

One very important case, University of Alabama Board of Trustees v. Garrett, for example centers on the right of employees of state agencies to sue those agencies for damages for violating their rights under the federal Americans with Disabilities Act.

While the 11th Circuit Court upheld the employees' rights, the report notes that a Supreme Court ruling from last term went the other way on a Florida case (Kimel v. Florida Board of Regents) involving the Age Discrimination in Employment Act.

"This Court has begun to steadily turn back the clock toward a time a half-century ago when the freedoms Americans could count on varied from state to state and the courts and the Congress were too weak to guarantee liberty and justice for all," said Ralph G. Neas, president of People For the American Way. "No American's fundamental rights should depend on where they happen to live or work, yet that is the dangerous direction the Court is headed in."

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Besides Garrett, other cases of this kind this term involve such issues as English-only driver's license exams (Alexander v. Sandoval); enforcement of the Clean Water Act (Solid Waste Agency v. Army Corps of Engineers); and the Environmental Protection Agency's power to set air quality standards under the Clean Air Act (Browner v. American Trucking Ass'n). ). The Court has also been asked to review other similar cases, including one that concerns Congress' power to ban semiautomatic weapons (Navegar Inc. v. United States).

Although there is no way of predicting with any certainty how this closely divided Court will rule either on the cases it has already agreed to take or others it may take up this term, there is considerably more certainty about how a future Court reshaped to mirror the views of Justices Thomas and Scalia is likely to rule.

The report reviews over two dozen cases now moving through the lower courts that are moving towards the Supreme Court. How these cases are ultimately decided is crucial to defining Americans' fundamental rights around such issues as civil rights and discrimination, religious liberty and school vouchers, free speech, and the Internet, as well as further cases involving Congress' power to enact laws to protect individual rights.

During the next presidential term, there could be dramatic change on an aging Court that has not seen any retirements in over six years - the longest interval between appointments in 177 years. Court-watchers are predicting that the next President could have the opportunity to appoint two or possibly three new Justices.

The two candidates' statements about the kind of Justices they would nominate for the now narrowly divided Court underscored how important it was for voters to consider the Court when they voted on November 7.

The report notes that when the cases before them provided the opportunity, a George W. Bush-nominated Scalia-Thomas majority would almost certainly:

  • Restrict or eliminate on abortion rights and uphold religious school vouchers.
  • Bar any kind of affirmative action or voluntary school integration.
  • Invalidate campaign finance laws and regulations.
  • Impose increasingly severe limitations on Congress' authority and exempt the states from the Family and Medical Leave Act and other federal laws.

    "The future of the Supreme Court and of Americans fundamental rights are on the line in this election, and this issue makes it the most important election in two-thirds of a century," says Neas. "

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