By Steven Rosenfeld
The Supreme Court's current term may be a great step backward for progressives.
There’s a reason the U.S. Senate has stonewalled many of President Obama’s federal court nominees. Republicans know that stacking the courts is the most powerful way to allow or impede progress on the most controversial issues—especially when Congress is tied up in dysfunctional knots.
That brings us to the current U.S. Supreme Court term, which is poised to start issuing decisions on a handful of big cases that are near and dear to progressives’ hearts: affirmative action in college admissions, same-sex marriage, minority voting rights, patenting human genes, and police power to take a suspect's DNA, to name a few.
Let’s go through a half-dozen cases where the high court majority, justices appointed by Republican presidents, is likely to stop or slow down the social evolution that began in the 1950s civil rights movement and also grant corporate America and the police more power over the genes in our bodies.
1. Rolling back affirmative action. The first big civil rights case concerns affirmative action in higher education. The case, coming six decades after an entirely different Court ordered the integration of public schools in Brown v. Board of Education, revolves around a young white woman who did not get into the University of Texas at Austin. A decade ago, the Court held that there was a compelling interest in considering race in university admissions, but today’s Court is perceived by civil rights groups as being openly hostile to affirmative action in academia. Justices Antonin Scalia and Clarence Thomas have been called out by scholars for their hypocrisy on affirmative action; however, that’s not likely to stop them from rolling back civil rights.
2. Upholding some gay rights but not others. There are two big same-sex marrage cases on the docket, and it appears that the Court will uphold some rights for same-sex couples, but also slow down the legal clock for marriage equality. The first case concerns the federal Defense of Marriage Act, where a majority of justices seem ready to strike down a section of the federal law that denies government benefits to same sex couples—because it does not treat people equally under the law. However, the Court also heard a case involving a California ballot measure that banned gay marriage but was overturned by a lower court. There, the justices seemed inclined to make as narrow a ruling as possible, meaning there would be no federal right to marriage equality. Same-sex marriage would then be subjected to state-by-state fights for years, until another case came before the Court. That’s a big right-wing victory.
3. Undermining minority voting rights. Waving the states’ rights flag is an old ploy for reactionaries who want to restrict voting rights. The way it's playing out today is in Republican claims that the federal govermment no longer needs to act to prevent race-based discrimination in voting. Republicans in Texas, which has one of the worst recent records on voting rights, have sued to overturn the sections of the 1965 Voting Rights Act that give the Justice Department power to block changes in state election practices. During the Court’s hearing, Scalia was visibly hostile to the VRA, calling it a “ race-based entitlement.” The GOP’s numerous nasty race-based tactics in the 2012 election were ignored, suggesting that the Court will gut one of America's most important civil rights laws.
4. Human genes will become private property. The case before the Court concerns a biotech company, Myriad Genetics, that has two patents on the human genetic code that determines if a woman is likely to develop breast cancer or ovarian cancer. The firm is the only one that tests women for these two diseases, because of the patents, and also controls related research on these genes. That stops women from getting second medical opinions and scientists from developing less expensive tests. The justices had reservations about Myriad’s monopoly, but also seemed inclined to find a compromise preserving biotech patents. (There are now 40,000 patents on human genetic material.) Earlier this year, the Court validated Monsanto's patent rights to modify genes in seeds. It’s likely its pro-corporate majority will find a way to keep privatizing advances that hold the key to the health of tens of millions of people.
There are many other issues before the Court, but these cases involving civil rights, from affirmative action in college admissions to same-sex couples to voting and policing, seem destined to brand this term as a great step backward for progressives. Add to that likely pro-corporate and pro-police rulings on the building blocks of life and the only questions that emerge are when will the next conservative justice retire? And why doesn’t Obama fight more vigorously for his judicial appointments?