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Most discussion about the Supreme Court nomination has centered on Roe v. Wade, one of the most significant cases in the past generation. However, the stakes of the upcoming confirmation hearings are more far reaching. A court tilted further to the right by another right-wing Justice could literally transform the country overnight, undoing both the New Deal and the Great Society in one fell swoop. That means, the safety nets relied upon by our families and communities for the last 50 years could be shredded, our environment could be plundered, and hard won civil rights could be eroded.
What many do not realize is that recent cases before the high court interpreting the scope of Congressional power under the Commerce Clause affect every one of these issues. It all comes down to the continuing national debate on states' rights vs. Federalism.
The Constitution defines what powers are entrusted to the federal government, reserving all other powers for the states. One power entrusted to the federal government is the power to regulate interstate commerce. The entire legal framework of 20th century civil rights and environmental legislation is based on the Federal Commerce Clause. For years, conservatives have championed so-called "states' rights" as a means of undermining federal control over states that have historically, for example, denied African Americans the right to vote. Cases before the Supreme Court that seek to restrict the Commerce power are the realization of that long-standing conservative wish.
The interpretation of the federal Commerce clause remains in the balance, putting environmental and civil rights legislation in a precarious position. Should a right-wing Justice join the conservative bloc of judicial activists (including Chief Justice Rehnquist and Justices Scalia and Thomas), we could well see Federalism reinvigorated, with a conservative Court striking down Congressional legislation such as the Endangered Species Act, the Clean Water Act, and the Civil Rights Act of 1964.
At stake, then, are not only a woman's right to choose, but also federal protection for civil rights and the environment. And given the lifetime tenure of Supreme Court Justices, the outcome of the upcoming confirmation battle could determine the limits of our national government for the next generation.
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