What's at Stake: Issue by Issue

Just one or two more rigidly ideological justices like Antonin Scalia and Clarence Thomas could radically change many of our fundmanental rights. The nine-member Supreme Court interprets the Constitution and reviews laws that affect a wide range of our rights as Americans. Right now, the Court is closely divided on important questions, so the people appointed to fill the vacancies expected on the Court over the next few years will have a huge effect on individual Americans’ ability to seek justice in the courts. Just one or two more rigidly ideological justices like Antonin Scalia and Clarence Thomas — the justices who President Bush has called his models for Supreme Court appointments — could radically change many of our fundamental rights.

This page outlines, issues by issue, some of the critical rights and protections at risk with the selection of new Supreme Court Justices:

Campaign Finance Reform
Civil Liberties
Civil Rights
Corporate Power and Abuse
Disability Rights
Environmental Protection
Free Speech
Gay Rights
Immigrants' Rights
Older Americans' Rights
Privacy Rights
Public Education
Religious Liberty
Sensible Gun Control
Women's Rights
Workers' Rights

Campaign Finance Reform

Erasing limits on individual campaign contributions: Just one more far-right vote on the Supreme Court could mean the reversal of the landmark Buckley v. Valeo ruling that allows limits on the amount of individual campaign contributions.

Overturning, invalidating and ruling unconstitutional campaign finance laws: Another Scalia-Thomas justice on the court could mean overturning most of the landmark McCain-Feingold campaign finance law, particularly its ban on the use of "soft money" by political parties. More of these justices could also potentially rule unconstitutional campaign finance laws that prohibit direct spending by corporations to promote or oppose political candidates.

Exempting political conventions: Just a few more far-right votes on the Court could exempt political conventions that choose party candidates from key anti-discrimination provisions of the Voting Rights Act.

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Civil Liberties

Indefinite detention: Two more votes with Scalia and Thomas would have reversed the Court’s 2004 decision that detainees at Guantanamo can present claims challenging their indefinite detention in federal court. Justice Thomas would even have upheld indefinite detention of U.S. citizens on American soil without any rights.

Free speech: Just two more justices like Thomas and Scalia would allow government to significantly limit free speech by charging controversial speakers large permit and police protection fees.

Legal aid: One more vote with Scalia and Thomas would have reversed a decision that has allowed federally-funded legal aid attorneys to continue helping clients challenge welfare laws that the clients feel are unfair.

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Civil Rights

Affirmative action and equal opportunity: Just one more far-right vote on the Supreme Court would completely eliminate affirmative action and restrict other means of promoting equal opportunity.

Voting rights: Just one more right-wing vote on the Court would make it impossible to challenge even blatantly partisan political gerrymandering. Current far-right justices Scalia and Thomas want to go even further and overturn 30 years of Supreme Court decisions that protect minority voting rights.

Job and other discrimination: Just a few more far-right votes on the Court would make it much harder to prove or remedy bias based on race, age, gender, disability and other factors. For example, it could become impossible for state employees to address violations of the Family and Medical Leave Act.

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Corporate Power and Abuse

A Court with just one more justice like Scalia and Thomas would strip the Environmental Protection Agency of its authority to prevent damaging air pollution by corporations when states fail to do so. Right to organize on the job: One or two more justices like Thomas or Scalia would make it easier for corporations to refuse to bargain with elected union representatives and to suspend or fire workers who try to organize other employees.

Patients’ rights against HMOs: By just one vote, the Supreme Court ruled to protect patients’ rights laws in 40 states from an HMO that wanted to invalidate them. Just one more justice like Scalia or Thomas would undermine states’ ability to protect Americans from arbitrary decisions by HMOs.

Pension and retirement benefits: In an important recent case, a Court with two more Scalia-Thomas justices would have penalized retired coal workers for a federal agency’s mistake, jeopardizing the retirement benefits of as many as 10,000 coal industry retirees.

Safe and bias-free work environments: A Court with additional Scalia-Thomas justices would drastically limit corporate responsibility for harassment of employees by supervisors. Such a court would also restrict protections from abusive work environments and from discrimination based on race, gender, disability, or other factors.

Protection from corporate polluters: A Court with just one more justice like Scalia and Thomas would strip the Environmental Protection Agency of its authority to prevent damaging air pollution by corporations when states fail to do so.

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Disability Rights

Further threats to the ADA: Just one more justice voting with Scalia and Thomas would have taken a fundamental right—access to state judicial systems—away from people with disabilities. Scalia and Thomas voted to throw out a case brought by a paraplegic who was literally forced to crawl up the courthouse steps in order to defend himself in court. Additionally, two more justices voting with Scalia and Thomas would interpret the ADA to allow discrimination against asymptomatic persons infected with HIV and improper institutionalization of people with mental disabilities, and would prevent the Equal Employment Opportunity Commission from suing an employer under the ADA where the employer has required arbitration.

Limits on educational opportunity for children with disabilities: Justice Thomas has argued that a school district should be able to deny nursing services that are essential for a disabled boy to attend school. Justice Scalia has claimed that a disabled student should lose his right to public education because he had temporarily dropped out of school. More right-wing justices like these could severely threaten special education rights.

Housing discrimination on the basis of disability: Just two more votes with Scalia and Thomas could have reversed a crucial Court decision that local city ordinances cannot override the federal Fair Housing Act’s ban on discrimination against people with disabilities.

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• (Versión en español)

Environmental Protection

Environmental regulation: A right-wing majority on the Court could strip the EPA of the authority to prevent damaging industrial air pollution when state agencies improperly fail to do so.

Weakened protections: A right-wing majority on the Court could elevate "private property" rights to severely limit even temporary government rules protecting the environment in areas like the Lake Tahoe Basin.

Engangered species: A right-wing majority on the Court could severely restrict federal authority to stop the destruction of endangered species and wildlife habitats on private land.

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Free Speech

A Scalia- Thomas majority would increase the government’s power to regulate and suppress political dissent.Constitutional protections: A Scalia- Thomas majority would increase the government’s power to regulate and suppress political dissent. In 2003, Scalia went so far as to indicate that it would be permissible to decrease the protections offered by the Constitution for individual American liberties by saying, "The Constitution just sets minimums." Scalia stated that, in wartime, it can be expected that "the protections will be ratcheted right down to the constitutional minimum."

Artistic expression and scientific advancement: A few more Scalia-Thomas justices could advance the view that the government should use its role as a patron of the arts and sciences to control speech. New right-wing justices would continue to pressure the artistic freedoms of artists and writers, and scientists would be profoundly affected, as much of their work depends on government funding.

Freedom of dissent: With a few more Scalia-Thomas justices who share a disdainful view of the Bill of Rights, free speech rights could be permanently curtailed. With the passage of the USA Patriot Act – and especially during the debate over and execution of the U.S. invasion of Iraq – Americans have seen their free speech greeted with intimidation and threats of arrest from federal and local law enforcement. Similarly, voices from the Right Wing have created a culture of intimidation, branding as ‘traitors’ and ‘enemies of the state’ Americans who exercise their free speech rights.

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Gay Rights

Violating privacy rights: Just one more justice like Scalia and Thomas on the Court would likely reverse the landmark holding in Lawrence v. Texas that all consenting adults, including gay men and lesbians, are entitled to privacy with respect to their private sexual conduct –– and would revive the infamous Bowers v. Hardwick ruling allowing states to treat people as criminals based on their private conduct in their bedrooms.

Authorizing blatant discrimination: Just two more votes with Scalia and Thomas would have reversed the entire Lawrence decision and made it legal for states to adopt anti-sodomy laws that specifically target lesbians and gay men. Two more Scalia-Thomas votes would also reverse a Supreme Court decision overturning an anti-gay constitutional amendment in Colorado. Any hope of arguing for non-discriminatory marriage rights under federal law or the Constitution would disappear.

Weakening First Amendment and other protections: Right-wing assaults on museums, galleries, and arts agencies funded by government often focus on gay artists. More right-wing justices on the Court would further threaten the First Amendment rights of gay artists and performers against anti-gay censorship. And access to even basic due process is threatened: in a case concerning an employee fired by the CIA after he revealed he was gay, Justice Scalia claimed that the employee should not even be able to have a court consider his constitutional claims.

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• (Versión en español)

Immigrants' Rights

On-the-job rights: Justices Scalia and Thomas have already joined in a 5-4 ruling that the National Labor Relations Board could not award back pay to a worker who had been unlawfully fired for participating in union organizing because the worker was an undocumented immigrant not authorized to work in this country. A Supreme Court with even one or two more justices like Scalia and Thomas would make the situation even worse.

Judicial review for immigrants subject to deportation: In a 5-4 ruling, the Court rejected the government’s argument that 1997’s strict new federal immigration law permitted automatic deportation of lawfully admitted immigrants who had pled guilty to crimes before the law went into effect, rejecting the argument that these new rules could be applied retroactively. Justices Scalia and Thomas dissented. Just one additional vote with Scalia and Thomas would make it much more difficult for immigrants to challenge in court other deportation policies adopted by the government.

Indefinite incarceration of immigrants: Two more Scalia-Thomas justices could mean that an immigrant who is removable from this country could not even file a petition for habeas corpus to raise constitutional challenges to certain laws authorizing lengthy detentions. In a 5-4 ruling, the Court held that the government cannot keep an alien who is under final order of removal in jail indefinitely, even though no country will accept that person. Justices Scalia and Thomas issued a separate dissent, maintaining that an incarcerated alien subject to a final order of removal has no constitutional right to be released from custody under any circumstance, and that there are no situations in which a court could order that person’s release from custody.

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Older Americans' Rights

Make it harder to prove age discrimination: Justice Thomas has claimed that older Americans should not be able to use the same legal tools to prove their cases as are used in race and sex discrimination lawsuits.

Weaken legal protections for older Americans: Justice Scalia has argued that age discrimination victims should be forbidden from using the legal discovery process to identify other victims of age bias by an employer. This would make patterns of discrimination much harder to prove and weaken age discrimination protections.

Protect younger workers at older workers’ expense: Two more justices like Scalia and Thomas would allow younger workers to use the Age Discrimination in Employment Act, contrary to Congress’ intent, to claim that older workers are getting more favorable treatment.

• Download Older Americans' Rights printable fact sheet
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Privacy Rights

A Scalia-Thomas majority would overturn Roe v. Wade and eliminate a woman’s constitutional right to reproductive freedom.Reproductive and intimate privacy: A Scalia-Thomas majority would overturn Roe v. Wade and eliminate a woman’s constitutional right to reproductive freedom. It would also reverse Lawrence v. Texas and allow criminal prosecution of consensual adult sexual conduct that takes place in the privacy of one’s home.

Privacy of health care records and treatment: A few more Scalia-Thomas justices would allow hospitals to test pregnant women without their knowledge or consent for suspected drug use and give the results to police. They would also prevent states from passing specific laws to protect people approaching health care facilities from harassment.

Privacy protections against law enforcement abuse: Just a few more justices like Scalia and Thomas and police would be authorized to set up highway roadblocks and randomly stop motorists, without suspicion, to look for drugs. Privacy rights are also at stake in light of some government actions after 9/11. Chillingly, Justice Scalia has stated that most of our rights currently “go way beyond what the Constitution requires,” and that in wartime, it can be expected that such protections “will be ratcheted right down to the constitutional minimum.”

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Public Education

Privatization: Just one or two more justices like Scalia and Thomas would further open the doors to dozens of schemes to take money and resources from public schools to subsidize private education. Even challenges to the constitutionality of voucher plans under state law could be doomed if more right-wing justices are added to the Court.

Equal opportunity, affirmative action and discrimination in education: Just two more justices like Scalia and Thomas would deal a devastating blow to educational opportunity by limiting the government’s ability to remedy the effects of racial segregation in public schools. In 2003, the Court narrowly upheld some affirmative action to promote diversity in higher education. One more right-wing vote would result in banning affirmative action, threatening diversity in education for decades. Justice Scalia has argued that states have the right to engage in gender-based discrimination in higher education, and the right-wing has repeatedly decried the right to free public education for students with disabilities. More Scalia-Thomas justices could challenge laws designed to prevent discrimination of students based on disability and gender.

Religious liberty: A Scalia-Thomas majority would be hostile to the principle of church-state separation, and would overturn a series of Supreme Court precedents that protect public school students from religious coercion in the classroom and at school activities.

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Religious Liberty

State laws threatening religious liberty: Just one more vote with Thomas and Scalia would have reversed a 2004 ruling and made it impossible to challenge in federal court any state tax law that violates religious liberty under the Constitution. That would mean that a state tax law discriminating in favor of or against religion would be immune from federal lawsuit. Justice Thomas would even allow states or local governments to adopt an official religion.

Taxpayer funding of sectarian schools and social services: Just one more vote like the ones cast by Scalia and Thomas would allow direct government funding of sectarian religious schools, and would probably allow government funding of sectarian social services even when they have an explicitly religious purpose or content. In fact, Scalia and Thomas would require a state to subsidize people training to become ministers if the state offers college scholarships for education or other secular subjects.

Religious coercion in public schools: Just one or two more justices like Scalia and Thomas would allow promotion of religion to “captive audiences” of public school students at school activities, even in classrooms.

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Sensible Gun Control

The rights and safety of Americans: In the past decade, 5-4 rulings by the Supreme Court have struck down a federal law prohibiting firearms in the proximity of schools and quashed a part of the Brady Act pertaining to background checks on handgun practices. Right-wing justices could seal the fate on these and other gun control measures that protect the rights and safety of all Americans.

Second Amendment challenges: Since 1939, the Supreme Court has refused to revisit the question of the interpretation of the Second Amendment. Recently, the Court dealt a blow to the NRA and other pro-gun lobby groups by refusing to review two cases that the gun lobby believed could nullify many existing gun control laws. Both of these challenges were based on a belief that the Second Amendment guaranteed the rights of individuals to carry weapons. During John Ashcroft’s tenure at the Justice Department, the department reversed its long-standing opposition to this interpretation, embracing the view that the Second Amendment protects the rights of individuals to carry guns. New right-wing justices could agree with this interpretation and join the Supreme Court with pivotal votes that would overtun many federal and state gun control laws. Indeed, Justice Clarence Thomas has already argued that Congress has no authority to pass gun control laws.

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Women's Rights

Right to privacy and reproductive freedom: A Scalia-Thomas majority would overturn Roe v. Wade and eliminate a woman’s constitutional right to reproductive freedom. They believe there is no constitutional right to privacy, and would allow states to ban abortion without exception. Furthermore, hospitals would be allowed to test pregnant women without their knowledge or consent for suspected drug use and provide police with the results.

Discrimination against women: Just two more justices like Scalia and Thomas would have allowed sex discrimination during jury selection and prevented state employees from suing for damages under the Family and Medical Leave Act. Such right-wing justices would also make it harder to prove gender-based discrimination on the job and eliminate affirmative action for women under federal statutes.

Sexual harassment on the job or in school: A few more justices like Scalia and Thomas would make winning justice in the courts more difficult for victims of sexual harassment. They would drastically limit employer responsibility for harassment by supervisors and reduce protection against abusive or hostile work environments. Also, one more Scalia-Thomas vote would undoubtedly eliminate any federal protection for public school students against sexual harassment by other students.

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Workers' Rights

Discrimination and harassment on the job: A Scalia-Thomas Court would make it much harder for victims of discrimination or harassment based on race, sex, age, disability, or other factors to win justice in the courts. Just two more justices like Scalia and Thomas would prevent state employees from getting effective relief for violations of the Family Medical and Leave Act, and would stop the EEOC from suing on behalf of employees under the Americans with Disabilities Act where employees are required to sign arbitration agreements.

Right to organize on the job: A Scalia-Thomas majority would seriously weaken the right of employees to bargain collectively and be treated fairly. Such a majority would make it easier for employers to refuse to bargain with elected union representatives and to suspend or fire workers who try to organize other employees. Additionally, just one more justice like Scalia and Thomas would allow government employees to be fired for belonging to the wrong political party.

Pension and retirement benefits: Just two more votes with Scalia and Thomas in a 2003 case would have penalized retired coal workers for a federal agency’s tardiness, jeopardizing the retirement benefits of as many as 10,000 coal industry retirees.

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For a comprehensive breakdown of what's at stake on the Supreme Court, check out People for the American Way Foundation's special report: Courting Disaster 2005.