Center for American Progress Action

RELEASE: An Obama Supreme Court Versus a Romney High Court, Important Rights at Stake this November
Press Release

RELEASE: An Obama Supreme Court Versus a Romney High Court, Important Rights at Stake this November

Read the full report here.
Watch “Ask the Expert: The Politicization of the Constitution” here.

Washington, D.C. — The most important legal development of the last decade is the Republican Party’s wholesale abandonment of judicial restraint. Today, in honor of Constitution Day, the Center for American Progress Action Fund released “An Obama Supreme Court Versus a Romney High Court,” which explains how a President Romney’s appointments to the Supreme Court could open the floodgates to a conservative vision previously only seen in judicial dissents, or how President Obama could reverse this tide in his second term.

Four sitting Supreme Court justices are over the age of 70, so the winner of November’s election could shape the Court for a generation to come. Our report highlights several narrowly decided Supreme Court decisions which have reshaped the rights of women, workers, consumers, and voters, all of which could be overruled if just one vote on the Supreme Court shifts ideologically. Here are 10 examples of the many cases outlined in this CAP Action report whose continued existence could turn on this election:

If President Obama wins, these cases could be overruled:

  • Election buying: Citizens United v. Federal Election Commission held that corporations and unions may spend unlimited money to influence elections. One more left-of-center justice will provide the five votes needed to overrule it.
  • Forced arbitration: A 5-4 Court in Circuit City v. Adams held that employers can force their employees to sign away their right to sue the employer in a neutral court of law, and force them into a corporate-run arbitration system. A more progressive Court would likely restore workers’ ability to hold employers that violate the law accountable before a real judge.
  • Voter suppression: In Crawford v. Marion County, the Supreme Court largely gave the thumbs up to “voter ID” laws. These laws supposedly target the nonexistent problem of in-person voter fraud, and they disenfranchise thousands of minority, student, low-income, and elderly voters in the process. An additional Obama justice would likely provide the fifth vote to strike them down.
  • Discrimination: A 5-4 Court held in Boy Scouts v. Dale that organizations are free to ignore state antidiscrimination laws and exclude certain groups from their membership. Although Boy Scouts was a gay rights decision, its reasoning could also be applied to groups that discriminate against women or African Americans.
  • Workers’ rights: In Gross v. FBL Financial Services, a 5-4 Court stripped older workers of much of their ability to ensure they will not be fired or demoted because of their age. A more progressive Court could give those rights back.

If Gov. Romney wins, these cases could be overruled:

  • Health care: Four justices voted to strike down the Affordable Care Act in National Federation of Independent Business (NFIB) v. Sebelius, relying on an argument that, in the words of a top conservative judge who was awarded the Presidential Medal of Freedom by former President George W. Bush, has no basis “in either the text of the U.S. Constitution or Supreme Court precedent.”
  • Judges for sale: Four justices gave the thumbs up in Caperton v. Massey to a coal executive’s scheme to spend $3 million to elect a state supreme court justice who then cast the deciding vote overruling a $50 million verdict against the coal baron’s company.
  • Gay rights: Six justices held in Lawrence v. Texas that gay couples cannot be prosecuted for having sex. One was already replaced with a more conservative justice. Replacing another would likely lead to Lawrence being overruled.
  • Corporate immunity: Four justices voted in Cuomo v. Clearinghouse to support a banking industry attempt to immunize itself from state fair lending laws.
  • Reproductive freedom: Finally, Roe v. Wade will likely not survive an additional conservative justice.

Read the full report here.
Watch “Ask the Expert: The Politicization of the Constitution” here.

To speak with CAP Action experts on this topic, please contact Christina DiPasquale at 202.481.8181 or cdipasquale@americanprogressaction.org.

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