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Future Supreme Court Vacancies, the Senate, and ‘Nuclear’ Fallout
Why the Stakes are so High
The Conservative Chief Justice and the Impact of a Far-Right Replacement
The Far Right, the Filibuster, and the ‘Nuclear Option’
The President’s Move

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Future Supreme Court Vacancies, the Senate, and ‘Nuclear’ Fallout
Why the Stakes are so High
The current Supreme Court is closely divided on fundamental constitutional issues, with many of the most important cases in recent years being decided by one or two votes. If President Bush were permitted to create a far-right majority on the U.S. Supreme Court, many of the legal and social justice gains of the past seven decades would be overturned and rolled back. Rights and legal protections that Americans fought hard to secure would be dismantled, and the return to a pre-New Deal approach to the Constitution could prevent future Congresses and Presidents from enacting progressive legislation for decades to come.

President Bush has suggested that his models for future appointments are Justices Antonin Scalia and Clarence Thomas, who are eager to overturn Roe v Wade and its recognition of a constitutional right to privacy. But this is not just about privacy and reproductive choice. This is also about radically restricting the Voting Rights Act. It is about stripping Congress of the constitutional authority to protect Americans’ drinking water and other environmental resources. It is about dismantling protections against religious coercion by government officials. It is about eliminating remedies for Americans victimized by abusive employers or government agencies. It is about rolling back basic legal equality for gay and lesbian Americans.

This is not merely political rhetoric – it is straightforward analysis of the written opinions of Justices Scalia and Thomas. It reflects the legal philosophy and goals of the so-called “federalist” movement – the right-wing legal movement that is pushing to bring back a pre-New Deal interpretation of the U.S. Constitution The goals of the far right are within reach with just one or two more justices in the mold of Scalia and Thomas. A Scalia-Thomas majority could cement a disastrous far-right judicial philosophy for decades to come.

Clearly, President Bush, who won a narrow victory and leads a divided nation, has no mandate to bring about that kind of reactionary revolution in our justice system.

People For the American Way Foundation’s Courting Disaster report, originally published in 2000 and updated for 2004, examines concurring and dissenting opinions by Scalia and Thomas and asks, what if their views commanded a majority on the Court? The answer is stunning – more than 100 Supreme Court precedents and the legal protections they safeguard would be at risk. The 2004 version of Courting Disaster is available at

Many of President Bush’s nominees to the federal appellate courts, one step below the Supreme Court, reflect the extremist Scalia-Thomas approach to the Constitution and laws, indicating that Bush is likely to choose such nominees for the High Court.
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