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EVERY FOUR years, progressives are told to vote for a Democrat for president in order to save the Supreme Court. If the Republicans get the White House, goes the argument, they will continue packing the court with right-wing justices, and any number of crucially important rights–abortion, affirmative action, Title IX–will be up for grabs.
Left-wing columnist Norman Solomon recently used this very issue to lecture, "[T]hose on the left who don’t want to back Kerry, even in swing states, are inclined to dodge, or fog over, what hangs in the balance. But this finger wagging ignores the real history of the Supreme Court.
First, it’s not the case that the most liberal Supreme Court justices were nominated by Democratic presidents, and the most conservative by Republicans. Earl Warren, appointed by Republican Dwight Eisenhower, was expected to be a moderate conservative. Instead, he took liberal positions, writing the decision in Brown v. Board of Education, the case that outlawed segregation in public schools.
Justice David Souter, appointed by George Bush Sr., has taken a host of liberal positions, including upholding affirmative action and abortion rights, and ruling that the Boy Scouts should be required to accept gay scoutmasters. By contrast, Byron White–who was placed on the court by John Kennedy–went on to join the conservative wing of the court.
Even more important is that the nine members of the court don’t decide cases in a vacuum. In 1973, when the Roe v. Wade case that guaranteed women the right to abortion was decided, the court was full of conservatives appointed by Richard Nixon. Yet it was one of those appointees–Justice Harry Blackmun–who wrote the majority opinion in support of abortion rights.
Why? Because the legitimacy of the court and the legal system was at stake. Roe v. Wade was decided at a time when a growing women’s movement was bringing thousands of people into the streets to protest–and when opinions were changing about women’s roles at home and in the workplace. And it has been protest–not the makeup of the court–that has been the key to keeping Roe alive.
When two Supreme Court cases threatened to overturn Roe in the late 1980s and early 1990s, huge pro-choice marches in 1989 and 1992 had a clear impact. "A decision to overrule Roe’s essential holdings," Justice Souter wrote in the 1992 case, "would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy."
In other words, trying to end the right to choose would spark too much protest and would undermine the system.
NICOLE COLSON writes for the Socialist Worker.