It’s the Supreme Court, Stupid!” That’s the button a lot of women wore in 2000, and it hasn’t gone out of style. In the heat of the recent primaries, the Supreme Court just recently ruled that an Indiana law requiring voters to produce a photo ID at the polling place was not an undue burden, although we know acquiring such an ID if you are, for example, a mother working two jobs, caring for a family, and just barely getting by is a hardship akin to a poll tax. The Supreme Court’s apparent inability to comprehend this truth is a reflection of how far from the American reality this Court has strayed. And last summer, in a 5-4 decision, the Court disregarded decades of precedent by interpreting the 1964 Equal Employment Opportunity Act to deprive Lily Ledbetter of back pay for ongoing sex discrimination.
We have already had a preview of what the next years could bring in the clearest comparison likely to occur outside the pages of a textbook. In 2000, a majority of the court, led by Justice Sandra Day O’Connor, ruled in Stenberg v. Carhart that a Nebraska law attempting to ban a particular abortion procedure was unconstitutional because it lacked an exception allowing the banned procedure when necessary to preserve a woman’s health.
In 2007, with the resignation of Justice O’Connor and the addition of Chief Justice Roberts and Justice Alito, the Supreme Court ruled 5-4 in Gonzales v. Carhart that a nearly identical federal law was constitutional. It’s now clear that a majority of this new Court no longer upholds the premise that the regulation of abortion by the state or federal government must protect the mother’s health.
Abortion is not the only issue at stake. Of particular interest to Jewish women and others who value the separation of religion and state is the interpretation of the first amendment clauses banning the “establishment of religion” or “prohibiting the free exercise thereof.” A conference convened in April by President Bush at the White House highlights the ongoing struggle in this arena. Its express purpose was to seek ways to fund faith-based schools with taxpayer dollars. The promotion of religious statuary, plaques and celebrations by government at all levels is worrisome enough, but federal funding for faith-based programs that need not observe federal anti-discrimination laws, and whose message is inherently religious, is in many ways even more troubling.
These are critical issues that will likely come before the Supreme Court in the next few years. Can we rely on the Court to hold firm on protecting the rights of minorities and the right to be free from government control of over matters of personal choice? This is the question for us, the voters, as we make our choices in November.
Replacing Sandra Day O’Connor, the fifth vote in many cases involving women’s lives, has put critical focus on the remaining swing justice, Anthony Kennedy. Justices like Kennedy used to occupy the right wing of the court — now he is barely in the middle. Those four justices who embrace the jurisprudence of the Supreme Court that brought us Brown v. Board of Education and Roe v. Wade average 75 years of age, with none younger than 69. The others average 63 years, with none older than 72. There is little doubt that the next president will have the chance to make key appointments critical to saving the hard-won gains made since the landmark civil rights case Brown v. Board of Education of 1954. Like President Bush’s nominees, judges in their 50’s, the next president’s picks for life time seats on the highest court in the U.S. will exert influence over our people’s rights for another 25 years or more after January 20, 2009. Women’s stake in this inarguable fact is incalculable. Perhaps we need a new run of the “It’s the Supreme Court, Stupid!” buttons? Because it is!
Nancy Ratzan, president of the National Council of Jewish Women, is an attorney and was chair of BenchMark: NCJW’s Campaign to Save Roe, educating and activating the grassroots on judicial nominations.