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It's not the one you're thinking of.
The Supreme Court is a "Ktchen Table Issue" this election season (and every presidential
election season) because every piece of state and federal legislation
aimed at economic and social issues is at risk from an increasingly
conservative court. From the minimum wage, to employer health insurance
requirements, to family leave - virtually every entitlement the average
American worker has gained since the 1930s would be unconstitutional
according to the ideology of some right wing judges.
Prior to 1937, the Supreme Court was extremely reluctant to uphold anything that
interfered with the right of a business to contract as they saw fit.
They struck down one piece of economic legislation after another in
what was known as the "Lochner Era" on due process or interstate commerce grounds, until President Franklin
Delano Roosevelt became so frustrated with the intransigence of the
court he threatened to "pack" it by creating a new position on the court for every justice over 70.
Narrowly avoiding a constitutional crisis, the court began to change
their view, gradually abandoning their former position on economic and
social issues and laying the groundwork for the system of worker
protections and social programs we are accustomed to today.
But this was never a "done deal." The long legacy of the Warren court has
left most Americans pretty complacent about mainstream economic
protections that are considered shockingly liberal by some conservative
judges. While Chief Justice Roberts specifically cited Lochner era
cases as examples of unwarranted judicial activism, other republican
appointed justices might not feel the same way. Even within the
ultra-conservative Federalist Society, there is debate on the merits of Lochner era jurisprudence, (many conservatives-like Roberts-actually hate Lochner era thinking for its judicial activism) but even the idea that it might be debateable is scary to me, as a lowly worker bee.
Whatever his reputation as a "maverick" might be on other issues, Senator McCain has voted for every republican court appointee since taking office, including Janice Rogers Brown, who has stated publicly that she advocates a return to pre-1937 interpretations of the constitution. In contrast, Barack Obama is a former Constitutional Law professor who stood up in opposition to Brown's appointment. His speech is easy to understand and worth reading, but I'll give you a few of the important excerpts:
For those who pay attention to legal argument, one of the things that is
most troubling is Justice Brown's approval of the Lochner era of the
Supreme Court. In the Lochner case, and in a whole series of cases
prior to Lochner being overturned, the Supreme Court consistently
overturned basic measures like minimum wage laws, child labor safety
laws, and rights to organize, deeming those laws as somehow violating a
constitutional right to private property. The basic argument in Lochner
was you can't regulate the free market because it is going to constrain
people's use of their private property. Keep in mind that that same
judicial philosophy was the underpinning of Dred Scott, the ruling that
overturned the Missouri Compromise and said that it was
unconstitutional to forbid slavery from being imported into the free
States....Justice Brown, from her speeches, at least, seems to
think overturning Lochner was a mistake. She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot
maintain regulations that ensure our food is safe and the drugs that
are sold to us have been tested. It means, according to Justice Brown,
that local governments or municipalities cannot enforce basic zoning
regulations that relieve traffic, no matter how much damage it may be
doing a particular community.
I could go on. But I think you get the general idea.
Currently, 5 members of the supreme court are aged 70 or over. It only takes five
members to constitute a majority, and three of the younger members -
Thomas, Alito, and Roberts - lean significantly to the right. Whatever
your opinions on other matters decided by the Supreme Court, think long
and hard about what kind of economic future you want for your family
when you go to the polls this November.
