How to pick the next Supreme Court justices

By Kevin Cathcart

Originally published on Advocate.com July 12 2005 11:00 PM ET

With the retirement announcement of Justice Sandra Day O’Connor and rumors swirling about Chief Justice William H. Rehnquist, the long-anticipated battle over the future of the Supreme Court is here. We’ve seen the kinds of right-wing zealots that President Bush has nominated to lower federal courts. Now that we’ve come to the granddaddy of them all—the U.S. Supreme Court—the stakes could not be higher for the LGBT community and the nation as a whole.

The Supreme Court must be fair, independent, and a counterpoint to the other branches of government, which often are heavily swayed by their political bases and the politics of the moment. For this reason, Lambda Legal has called on President Bush to nominate individuals who will stand up for the rights and freedoms of all Americans, rather than pursue the narrow political agenda of the radical right. Regardless of who the president nominates, the Senate must fulfill its sworn duty under the U.S. Constitution to conduct a thorough, independent review of each nominee, and not just act as a political rubber stamp for the Administration’s selections.

Many of the president’s federal judicial nominees to date have not had an explicit track record on LGBT or HIV issues, and the same may be true of the individuals he advances to fill Supreme Court vacancies. Fortunately, by looking at a nominee’s rulings on issues like reproductive rights and the Americans With Disabilities Act, we usually can get a sense of how that person views the broader concepts of liberty, privacy, and equality—principles that inform most LGBT and HIV rights cases. Evaluating Supreme Court nominees on these issues means we won’t be silenced by stealth candidates whose future positions on our equality may be all too predictable and could set us back decades. So, here are issues on which you can judge the Supreme Court nominees.

Privacy and Individual Liberty

Good nominee: interprets the U.S. Constitution as a living document and recognizes that private, consensual intimacy is safeguarded from government intrusion by the constitutional protection of "life, liberty, and property." For example, the Supreme Court’s decision in Lawrence v. Texas protected private, consensual same-sex intimacy and said it couldn’t be made a crime.

Bad nominee: interprets the federal Constitution narrowly to protect only what the Constitution explicitly says and what the founding fathers supposedly would have protected. For example, the Supreme Court’s homophobic decision in Bowers v. Hardwick (overruled by Lawrence) held that same-sex intimacy could be made a crime because the country historically had sodomy laws.

Reproductive Freedom

Good nominee: recognizes that a woman’s right to choose is protected by the Constitution’s protection of “life, liberty, and property.” This constitutional principle is also important for LGBT people because the right to sexual intimacy is protected by this very same right to liberty. For example, when the Supreme Court struck down all remaining sodomy laws in the Lawrence case it relied on reproductive freedom cases like Roe v. Wade as supporting legal precedent.

Bad nominee: interprets the federal Constitution narrowly to protect only what the Constitution explicitly says and what the founding fathers supposedly would have protected. For example, conservative justice Antonin Scalia stated in one reproductive freedom case that a woman doesn’t have the right to choose an abortion because “the Constitution says absolutely nothing about it.”

Equal Rights Under the Law

Good nominee: gives real meaning to the Constitution’s guarantee that all persons are entitled to “equal protection under the laws.” For example, in Romer v. Evans, the Supreme Court struck down Colorado’s Amendment 2 as a violation of equal protection because it discriminated against gay people based only on bias.

Bad nominee: interprets “equal protection” very narrowly and allows government discrimination to be justified by weak excuses, including vague notions of “morality.” For example, Justice Scalia wrote that Colorado’s Amendment 2 was constitutional because it reflected voters’ “moral disapproval of homosexual conduct.”

States’ Rights (Federalism)

Good nominee: enforces the Constitution’s mandate that Congress has the power to pass laws addressing important national interests like protecting civil rights and that this power isn’t trumped by states’ rights. For example, in 2004 the Supreme Court correctly held, in Tennessee v. Lane, that the federal Americans With Disabilities Act gave disabled people the right to sue in state courts.

Bad nominee: interprets the Constitution as giving so much power to the states that Congress is denied the power to enact effective civil rights laws for the country. For example, in Tennessee v. Lane Justice Scalia said that the Americans With Disabilities Act didn’t give people with disabilities the right to go to state court because that would violate “states’ rights.”

Disability Discrimination

Good nominee: recognizes that the Americans With Disabilities Act was intended to offer broad protection to all people with disabilities, allowing them to participate as fully as possible in ordinary activities such as holding a job and securing housing. For example, in Bragdon v. Abbott Justice Anthony M. Kennedy came to the conclusion that HIV infection was a disability that limited a major life activity, and therefore the Americans With Disabilities Act prevented health care providers from refusing to treat patients with HIV.

Bad nominee: believes that people with disabilities should receive only minimal protection from discrimination and that laws like the Americans With Disabilities Act should be read narrowly in order to create loopholes allowing discrimination against people with disabilities, including people living with HIV. For example, in his dissent to the Bragdon decision Chief Justice William H. Rehnquist argued that “reproductive decisions” as well as “decisions as to who to marry, where to live, and how to earn one’s living” were not “major life activities,” and conditions limiting those activities, such as HIV infection, were not disabilities entitling people to protection under the Americans With Disabilities Act and other federal disability laws.

Gender Discrimination

Good nominee: recognizes that discrimination in employment, housing, and public accommodations based on sex or sex stereotyping is illegal. For example, in Price Waterhouse v. Hopkins Justice William J. Brennan recognized that sex stereotyping is a form of sex discrimination and that employers cannot punish female employees for failing to meet the employer’s stereotypical view of how a female should act and dress. (LGBT employees are often subjected to this kind of sex stereotyping.)

Bad nominee: believes that laws protecting people from sex discrimination should be viewed narrowly and that employers are allowed to treat people differently based on their sex. For example, in Lambda Legal’s case Jesperson v. Harrah’s Casino, a panel of federal appeals court judges held that an employer could fire a female employee for failing to wear a specific regimen of heavy makeup even though there was no similarly burdensome requirement for men.

Separation of Church and State

Good nominee: recognizes that the Constitution gives all Americans the right to choose their religion (if any), that the government cannot promote or fund activities that endorse religious beliefs, and that those beliefs can’t be used to exempt individuals from the responsibility of complying with antidiscrimination laws.

Bad nominee: believes that the Constitution allows the government to use tax money to fund religious organizations that discriminate against people of other faiths and LGBT citizens, and that individuals can invoke their personal religious beliefs to disregard gay rights and other civil rights laws. For example, some judges have ruled that landlords have a constitutional right to invoke their religious beliefs to ignore laws prohibiting discrimination against unmarried couples, and that there is no constitutional prohibition on government funding to religious agencies that refuse to hire gay people.