When American voters go to the polls every four years to elect a new president, it isn't only the White House occupant they are voting for. They are also indirectly casting their ballot for potential Supreme Court justices and federal court judges (appointed by the president) who will eventually decide the vast majority of important, precedent-setting cases in the country.
That is why Americans on both the left and the moderate right are deeply worried about the direction the Supreme Court has taken and the politicization it has demonstrated during its most recent session. As liberal Justice Stephen Breyer noted, "It is not often in the law that so few have so quickly changed so much."
The decisions of the Supreme Court, headed by conservative Chief Justice John Roberts Jr., were troubling and predictable during the spring session. They were troubling because they were ideologically driven rather than based on sound interpretations of the US Constitution; and they were predictable because, after so many five-to-four votes, Americans had come to expect more of the same - even as they hoped that Justice Anthony Kennedy's swing vote would counter some of the worrisome decisions the court was inclined to hand down.
It's important to know that one-third of the court's decisions in the last term were decided by five-to-four votes, more than in any other recent court term. As Linda Greenhouse of 'The New York Times' has noted, "most of those [cases], 19 of 24, were decided along ideological lines, demonstrating the court's polarization... Of the ideological cases decided this term, the conservative majority... prevailed in 13. The court's increasingly marginalized liberals... prevailed in only six."
Among the court's most disturbing decisions were those regarding abortion, school desegregation, pay discrimination, and free speech, all of which will have a dramatic impact on women and girls.
In a move that underscores the conservative agenda to repeal Roe v. Wade, the 1973 Supreme Court ruling that gave American women the legal right to abortion, the court upheld the Partial Birth Abortion Ban Act - despite a court decision in 2000 that found a similar law unconstitutional. As legal experts have pointed out, the Court all but abandoned the reasoning behind Roe v. Wade and, instead, opted to support the assumptions and rhetoric of the far Right.
Another decision bound to have a profound impact on women is that the Court has now allowed only 180 days to file a complaint for wage discrimination, thereby attacking affirmative action. For example, women who learn that they are being paid less than their male counterparts for doing the same job or who have not received the same wage increase are now sharply restricted from filing law suits, since it often takes longer than the allotted time to discover the disparity.
The Court also limited the ability of school districts to use race in assigning students to schools in order to achieve integration, a decision that flies in the face of the landmark 1954 decision Brown vs. Board of Education, which helped end institutionally-sanctioned segregation.
And, in a troubling case involving a school child's prank, the Court has allowed censorship to prevail. The case involved a teenager, who was suspended from school because he had displayed a banner interpreted by the principal to be advocating illicit drug use. The issue in question was the First Amendment and its guarantee of free speech.
Reaction to these decisions has been swift and forceful. It has come from experts, the public, the press and other justices. Editorials proclaimed it "a sad day for the court." One well-respected law professor called this "the year they closed the courts".
Justice Ruth Bader Ginsberg, now the only female justice in the Supreme Court, has taken the unusual step of reading her dissenting opinions aloud from the bench in a rebuke to her colleagues. In her dissenting opinion in the abortion ruling, she noted that, in 2000, five justices had rejected a Nebraska ban on partial birth abortion that was nearly identical to the one the Court upheld this year. Ginsberg concluded that the Court is "differently composed than it was when we last considered a restrictive abortion regulation," making the point that what matters now is not the quality of arguments presented to the Supreme Court but rather the identity, and politics, of the presiding judges.
Clearly, a transformation has taken place in the hallowed halls of American justice. The "conservative ascendancy in American law," as a 'New Yorker Magazine' columnist put it, "has implications for the nation" and they are "profound". Justice David Souter, an Associate Judge of the Supreme Court, obviously agrees. "It is intolerable for the judicial system to treat people this way," he has said.
There is a worrying possibility that President Bush will still be able to bring another justice to the Supreme Court. (Justice John Paul Stevens is 87 years old. Ruth Bader Ginsburg is 74 and has had cancer.) Certainly the next president will. That's why Americans are, finally, realizing that it is the courts they will be voting for, along with the president, in November 2008. They must decide which candidate will seat judges, who can best interpret the Constitution without political bias and who they want deciding what constitutes justice.