When the news broke on Feb. 13 of Justice Antonin Scalia's death, there was immediate heated debate about his replacement and what that might mean for future Supreme Court decisions.
For nearly 30 years as a Supreme Court Justice, Scalia had a major role in critical court rulings that continue to affect families nationwide. So I can't stress enough that this replacement is one parents should pay attention to.
Scalia was known for his
ultraconservative views, particularly when it came to social issues such as gay marriage and women's rights. While he purported to view
the law with an open mind and to apply it in a way that is fair and in keeping
with what he perceived to be the meaning of the Constitution (as intended by
the original writers centuries ago), his opinions often aligned with
those of the most conservative segments of our culture.
As mothers, reproductive rights continue to be an important and controversial issue. Scalia emphatically voted to uphold restrictions on abortion rights; this notably includes his urge to overrule Roe v. Wade (which deemed a state law that banned abortions except to save the life of the mother was unconstitutional). Just in 2014, he was a part of the five-justice majority in a landmark decision for a corporation to not provide contraceptive coverage to women if contraception doesn't align with the employer's religious beliefs (Burwell v. Hobby Lobby).
The justice also believed that the Constitution doesn't protect against discrimination on the basis of gender or sexual discrimination, which led to his vote against women in employment discrimination cases (Ledbetter v. Goodyear Tire and Rubber Co.).
"If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date," he said in an interview with legal magazine 'California Lawyer.'
As Marcia Greenberger, founder and co-president of the National Women's Law Center, notes, if we followed Scalia's concept, women would be paid less by the government, be legally barred from juries and be excluded from state-run schools.
A progressive, feminist judge—if that is who Obama will appoint—will be a defining decision that I believe can turn the tide for mothers and our daughters.
Scalia was also a supporter of the right to own
a gun, and he was the author of the majority opinion in District of Columbia v.
Heller, the 2008 case in which the Supreme Court ruled that the Second
Amendment right to bear arms applied to individuals. This understanding of the
amendment had been supported for years by many advocates of gun possession, but
it had not been adopted by the Court.
"If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing," Scalia wrote.
The decision was a major blow to those favoring gun control. It opened a floodgate of litigation over the constitutionality of many gun-control laws, and in my opinion, did nothing to curtail the gun violence in our country. As a nation, it has become commonplace
to turn on our televisions and learn that there has been a mass shooting, often
in schools, where large numbers of innocent students have been shot and killed.
The debate about gun rights continues to rage, as innocent lives are lost.
With Justice Scalia's passing, President Obama will now
have the opportunity to nominate the next Supreme Court justice. At present,
the Court tends to lean toward conservative interpretations of the law, but a
more liberal justice can move this divide to the other side. Unsurprisingly,
the Republicans are relentlessly calling for President Obama to not make an
appointment "during his last year in office," as though this is a reason for
him to not fulfill his role as the country's president.
It is a baffling statement, made all the more so because a suitable candidate should,
in truth, only be one who applies the law as he or she deems it is meant to be
applied within the confines of its statutory and constitutional meaning. A
nominee's personal political opinions should not in actuality come into play in
deciding whether he or she is an appropriate person for the job. Clearly, the
Republicans are shamelessly ignoring a fundamental requirement of American
jurisprudence—that the judge not already have an opinion before he hears the
case—as they suggest that they'll block any nominee the president selects.
But that is exactly why Obama supporters want him to nominate a justice before he leaves office. Unfortunately it is a political decision. We need to look at this historical moment through clear eyes.
Undoubtedly the upcoming nomination matters for all citizens, but it particularly matters to women and families. The right to health care,
for example, remains a critical issue, and the Supreme Court continues to make
decisions about the breadth and application of Obamacare. The highest
court is also set to hear cases concerning the right to abortion, the right to
vote and the scope of the death penalty. Each of these issues relates to our
basic human rights as citizens.
Thus far, President Obama has appointed two female
Supreme Court Justices, Sonia Sotomayor and Elena Kagan. For
more information on Justice Sotomayor's voting record, check out this article
from the New York Times. And for information on the
record of Justice Kagan, this Salon article will give you a clear picture.
Both have made an effort to rule expansively in the areas of human rights. A progressive, feminist judge—if that is who Obama will appoint—will be a defining decision maker that I believe can turn the tide for mothers and our daughters.
As you hear all sorts of rhetoric in the coming weeks about the
president's "overreaching" in naming a nominee to succeed Justice Scalia,
remember that, he is fulfilling a constitutional duty. Who sits on the
highest court of the country is of great consequence to our daily lives (Bush
v. Gore!), let us hope that Congress somehow allows President Obama to do his job.