In My Opinion: "Bush Court" in Scalia-Thomas Mold - A Worker's Nightmare

This November’s elections will shape our political and cultural landscape, not just for the next couple of election rounds or presidential terms, but more likely for decades to come. That’s because the next president will have a rare chance to define the philosophy of the Supreme Court — that third branch of government which has at least as much influence on our society as Congress or the president — for the next 20 years or more.

The nine Supreme Court justices, of course, are appointed for life, and court watchers agree that the next president will have a chance to name two or three new justices, and perhaps as many as four or five if that president serves two terms.

Supreme Court vacancies come up, on average, every two years. We’re overdue, because there hasn’t been a new appointment since 1994. Right now, three justices are over age 70, including Chief Justice William Rehnquist at 75, and one is 80.

The court right now is in a precarious balance between conservative and moderate wings, with the generally conservative Sandra Day O’Connor, who just turned 70, most often the swing vote in the ever-more-frequent close decisions.

Fully 28 percent of the 74 cases heard in the last Supreme Court session were decided on 5-4 votes — the highest percentage of close calls in a decade — with the conservatives prevailing most often.

Clearly, the character of the next one or two appointments will tip the balance in a fundamental way. And there is no mystery about the type of Supreme Court nominees each of the presidential candidates would choose.

According to Newsweek, which calls the High Court the “sleeper issue”: “Bush has said he would nominate only ‘strict constructionists’ to the bench, justices in the mold of Antonin Scalia and Clarence Thomas, the court’s most ardent conservatives. Gore, meanwhile, has said his judicial role model is the late Thurgood Marshall, one of the most liberal, activist judges in the court’s history.”
What would a “Bush court” in the Scalia-Thomas mold look like? We don’t have to guess, because the People for the American Way, a nonprofit, nonpartisan group advocating civil liberties, has done a comprehensive study of the decisions of these two men over the years.

The group’s conclusion: More justices like Thomas and Scalia would create a court that would favor business interests over workers’ rights, environmental protections, and consumer protections, and would chip away at individual privacy and free speech rights (based on Thomas-Scalia positions on these issues).

Scalia and Thomas vote together 94 percent of the time, often in minority dissents that are wildly at odds with the rest of the court. Their minority position on one case involving an interpretation of the Voting Rights Act of 1965 would have overturned at least 28 prior Supreme Court decisions. Their position was termed “radical” by four of their colleagues on the bench.

Based on their voting record, the PFAW study found that a Scalia-Thomas court would attack workers’ rights by, for instance, allowing public workers and contractors to be fired or disciplined for their political opinions and affiliations.

Further, Scalia and Thomas often have taken positions to weaken employees’ rights to strike, and in one case, “expanding employers’ ability to refuse to bargain with employees’ duly elected union representatives,” the group found.

These two justices, who Gov. Bush said on Meet the Press are the ones he most admires, also have a history of positions favoring employers and opposing the rights of workers under ERISA, the pension protection law. For instance, according to the PFAW report, “in 1996 Thomas and Scalia were joined by Justice O’Connor in a dissent that would have denied the employee beneficiaries of an insolvent retirement plan the right to sue for inclusion in another (solvent) employee benefit plan maintained by their employer.” Fortunately, the majority ruled the other way — that time.

The addition of one or two new Supreme Court justices who share Thomas’ and Scalia’s views also would undermine individual privacy rights and free speech, consumer protections, the separation of church and state, public access to the courts, and efforts to protect the environment — conclusions based on the study of their opinions in all these areas. (To see the full report, visit the web site: www.itsyourcourt.org.)

That’s the model that Gov. Bush says he wants. More justices like Thomas and Scalia would give the extreme political right and corporate America their “dream team” — and be a real nightmare for the average working American — for decades to come.

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