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Supreme
Court Swing
by Kevin
Cathcart, Lambda Legal Executive Director
From
365Gay.com on the Web, July 18, 2007
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In case you had any doubts about the
new Supreme Court, the past couple of weeks have confirmed our worst fears:
The pendulum has swung far to the right. That is why we have to roll up
our sleeves and work as hard as we have ever worked before.
We understood the risks. Lambda Legal opposed President Bush’s new
appointees, Chief Justice John G. Roberts and Justice Samuel A. Alito, and
worked with other groups to raise important questions about their judicial
philosophies.
What we didn’t know was how fast the new conservative majority would act to roll
back historic civil rights principles — in the words of Justice Stephen G.
Breyer: “It is not often in the law that so few have so quickly changed so
much.” The irony is that our opponents call jurists on our side “activist
judges”!
Breyer was referring to the court’s 5-4 decision that invalidated school
integration plans in Seattle and Louisville, Kentucky, but his words are an apt
summary of the entire term. In fact, according to the New York Times, one
third of the court’s decision’s were decided by 5-4 margins and most along
ideological lines. Justice Anthony M. Kennedy (the author of Lambda
Legal’s historic Supreme Court victory striking down all sodomy laws) has taken
up the mantle of the vital swing vote — and he is proving to be more
conservative than his predecessor in this role, Sandra Day O’Connor.
In addition to striking down certain school integration plans, the court
curtailed taxpayers’ right to challenge the president’s use of federal money for
faith-based initiatives, limited people’s ability to bring employment
discrimination lawsuits and put women’s reproductive health and rights at risk
by upholding the so-called federal Partial-Birth Abortion Ban Act.
Fair and impartial courts are vital to our democracy, and at Lambda Legal we
take the fight for fair courts seriously. Through our Courting Justice
project, we continue to work on several levels. While the Supreme Court
often steals the limelight, other federal and state judicial nominations are
also important. (Remember only 60 or so cases are decided by Supreme Court
every year while thousands terminate at lower federal courts; additionally state
courts have the final say in many matters affecting LGBT people and those with
HIV.)
Lambda Legal has taken an active role in speaking out about nominations in the
past few years, sometimes opposing candidates and other times pushing Congress
to ask tough questions of nominees. Most recently we submitted questions
to Senator Patrick J. Leahy (D-Vermont) concerning the nomination of Fifth
Circuit nominee Leslie Southwick. At issue for us was a ruling Southwick
joined saying a mother’s bisexuality could be a factor in a custody lawsuit.
A few of our questions made it word for word into the public record, and
although Southwick’s fate is still unclear, we are confident that our voice made
a difference.
As we continue to lay the groundwork for fair courts in the nominations process,
we are equally committed to helping people understand why courts matter and how
decisions at every level affect people’s lives. Lambda Legal’s “Life
Without Fair Courts,” comic strip series offers a surreal take on what life
would be like without certain precedent-setting decisions. We’re also
running an illustration contest where we’ve asked people to give us their take
on “Life Without Fair Courts.”
We hope the comics will make people laugh, but more importantly, we hope they
deliver the message that fair courts are a crucial component of our democracy
and often the last bastion of hope for those who’ve been denied fundamental
rights.
We know what it means to support “fair and independent courts.” It does
not mean that the LGBT community will win every court battle or that judges will
always agree with our positions. What it does mean is that the Supreme
Court and every other court in our country must uphold our Constitution for all
people. Our courts must hear all voices and protect the rights of
everyone, regardless of whether the people seeking their protection are in the
majority or the minority.
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