The narrow majority in both of the recently-decided abortion law cases has court observers wondering if the right to choose is up for grabs. An analysis of the decisions by Pro-Choice Views Guide Margaret Sykes.
Having virtually prohibited lawsuits against states for violations of federal laws, whether in federal court or state courts, in United States v. Morrison, the court ruled that Congress also could not provide a federal civil remedy to individuals against individuals, if the action arose out of acts which fall under state jurisdiction (in this case, rape) - despite Congressional findings of a "history of widespread and persisting deprivation of constitutional rights and despite 36 states explicit consent to the law.
The majority opinion indicated that the statute should have provided a federal remedy against state actors, if they fail to provide "equal protection" to victims of rape. But, as we've seen, this court has already held federal remedies against state actors to be unconstitutional in both federal courts and state courts.
Funny, I thought that part of being an "American" meant that citizens were guaranteed certain basic rights no matter which state they live in. I'd be willing to bet that the authors of the 14th Amendment intended to provide Congress with the power to insure that no state in this nation can fail to protect those fundamental rights and get away with it. I guess they just didn't count on this Supreme Court.
When we extend the logic and restrictions the Court imposed in these cases to other civil rights laws, it appears that there is no way to for Congress to enforce the "equal protection" guarantee of the 14th Amendment, and no way for the federal government to provide a remedy for those who have not received "equal protection." Looking at all these facts, again, the only term I find appropriate is "Judicial Nullification."
The Presidential Candidates
George W. Bush has stated that he would appoint Supreme Court justices "in the mold of" Justice Scalia and Justice Thomas, two of the Court's staunchest supporters of "state's rights." Al Gore has stated that he would appoint Justices who would interpret the Constitution in the tradition of Thurgood Marshall and William Brennan, two of the Court's most ardent supporters of civil rights.
Legal scholars will point out that the states' rights cases I've mentioned were decided on the specific circumstances of the case, and do not necessarily completely abrogate Congressional power to enforce the equal protection guarantees of the 14th Amendment. And that's true, to an extent. Other cases will most certainly have different circumstances, and could lead to different decisions. Perhaps some day even the Rehnquist Court will actually find a Congressional use of its Enforcement Clause powers to be constitutional. It is even possible that George W. Bush, should he win the election, will be "surprised" by his judicial appointees, as his father was surprised by Justice Souter. But I wouldn't bet the farm on it, I wouldn't bet my rights on it, and I certainly wouldn't bet my vote on it.
Karen
Articles
Analysis: Supreme Court Wrap-Up
The narrow majority in both of the recently-decided abortion law cases
has court observers wondering if the right to choose is up for grabs. An
analysis of the decisions by Pro-Choice Views Guide Margaret Sykes.
Federal Power and Its Limits
A look at limitations on Federal Power in state's rights cases decided during the 1998-99 Supreme Court term, by About Law Guide Paul Reed
Judicial Activism, Conservative-style
IntellectualCapital.com
Has the Supreme Court usurped Congress' power to regulate interstate commerce? Peter Shane, professor of law and former dean at the University of Pittsburgh School of Law examines the question.
No Jews or Blacks or Women or Irish Allowed
The U.S. Supreme Court has ensured that even private businesses are not entitled to discriminate on the basis of race, religion, national origin, gender, and, in certain circumstances, age. Its most recent ruling, however, says, "Not to fear, you're still allowed to discriminate against gays and lesbians."
The Presidency and Supreme Court Justices
National Abortion and Reproductive Rights Action League
A NARAL fact sheet evaluating the current Supreme Court and how the appointments of the next President's may impact the right to choose.
The Politics of Judicial Selection
IntellectualCapital.com
Randall Kennedy, Harvard Law School professor, looks at the man at the top of the Republican "short list" of Supreme Court prospects for nomination in the event of a Republican triumph in the election: J. Michael Luttig, a hard-right conservative hostile to abortion rights, affirmative action, suspects, defendants and prisoner's rights, and any regulation of private enterprise.
Return of State's Rights?
IntellectualCapital.com
None of the candidates for President has volunteered an opinion about the most significant states’ rights issue that will face the next president -- namely, the Supreme Court’s ongoing efforts to restore American federalism
The Quiet Revolution
Law.com
Conservatives Continue Federalism Resurgence by Expanding State Immunity. An article supportive of the Supreme Court's federalist rulings by Curt A. Levey, director of legal and public affairs at the Center for Individual Rights.
See Also:
Brief History of the Supreme Court
"The judicial Power of the United States, shall be vested in one Supreme
Court," is all the Constitution says about the Supreme Court. So, how did
they get to where are today? Learn a little about the past and the present of the Supreme Court, from US Government Guide Robert Longley.
Supreme Court: 5-4 Decisions of the 1999-2000 Term
A list of this term's 5-4 decisions by the Supreme Court, color-coded to indicate how potentially retiring Justices voted, from your Women's Issues Guide.
Judicial Appointments in Presidential Politics
About Law Guide Paul Reed provides more links for researching this topic further.