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The 1 Percent Court? After Healthcare, Supreme Court Returns to a Docket Heavy on Divisive Issues

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Beginning today, the Supreme Court’s new term is expected to see cases on a number of important and highly contentious issues. The last session was defined by a single case, the Affordable Care Act, President Obama’s signature bill, which was upheld by a 5-4 vote and cleared the way for the largest revamp of America’s healthcare system since the 1960s. In the new term, the court is expected to hear cases on a number of important and highly contentious issues ranging from affirmative action and same-sex marriage to corporate accountability for international human rights violations and voting rights. We’re joined by Nan Aron, president of Alliance for Justice. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re continuing our Silenced Majority 100-city tour, broadcasting from the capital of Virginia, Richmond.

We begin today’s show with the U.S. Supreme Court, which opens its 2012-'13 term today. The last session was defined by a single case, the Affordable Care Act, President Obama's signature bill, which was upheld by a five-to-four vote and cleared the way for the largest revamp of America’s healthcare system since the 1960s. In the new term, the court is expected to hear cases on a number of important and highly contentious issues ranging from affirmative action and same-sex marriage to corporate accountability for international human rights violations and voting rights. Chief Justice John Roberts cast the deciding vote for the healthcare act to be upheld, which has raised questions about whether the traditionally conservative chief justice will continue to ally himself with more liberal elements of the bench in the cases coming forward. The oral arguments today will be the first public session since the justices delivered the healthcare ruling in June.

To talk more about the significance of the cases before the court, we’re joined in New York by Nan Aron, president of Alliance for Justice.

Nan, welcome to Democracy Now! Before we talk about the new cases before the court, talk about what that last decision, the last time the justices were together, on the Affordable Care Act means, its significance, particularly Justice Roberts’ vote.

NAN ARON: Well, first, good morning. It’s a treat to be here. I am one of your most loyal fans.

The last season, we had a blockbuster case with the court deciding the constitutionality of President Obama’s healthcare law. And to many, the decision was a surprise. Chief justice had a majority to basically find the act constitutional under the government’s taxing power. I think many were surprised. Many expected the court to rule healthcare unconstitutional. So I think to most of us it was a very gratifying decision.

But at the same time, there were elements of the decision that were very worrisome, particularly language in the opinion that essentially said that this chief justice, along with a majority, would have found the act unconstitutional under the Commerce Clause. And why that is important is because so much of the foundation of progressive reform in this country, going back to the New Deal, is based on that Commerce Clause. So there are ominous signs for the future, and we have no idea what’s going to happen. But obviously, this was a very smart move by the chief justice. He essentially took an issue of the Supreme Court out of the election, and, as many have said, he preserved his judicial legacy on that court.

AMY GOODMAN: Let’s turn to that biggest case the Supreme Court heard in its last session, earlier this year the Supreme Court, of course, upholding the Affordable Care Act five to four. President Obama addressed the nation shortly afterwards.

PRESIDENT BARACK OBAMA: Earlier today, the Supreme Court upheld the constitutionality of the Affordable Care Act, the name of the healthcare reform we passed two years ago. In doing so, they’ve reaffirmed a fundamental principle, that here in America, in the wealthiest nation on earth, no illness or accident should lead to any family’s financial ruin. I know there will be a lot of discussion today about the politics of all this, about who won and who lost. That’s how these things tend to be viewed here in Washington. But that discussion completely misses the point. Whatever the politics, today’s decision was a victory for people all over the country whose lives will be more secure because of this law and the Supreme Court’s decision to uphold it.

AMY GOODMAN: That was President Obama. Nan Aron, president of Alliance for Justice, your response?

NAN ARON: Well, he certainly had all good reason to be very pleased with the decision, as were Americans throughout this country. But it’s interesting, ever since that decision was released, there’s almost been a hush around the country. And even though we’ve got this election coming up in a month, even though this election could well tip the balance one way or the other on the Supreme Court, even though so many decisions are five-four, with one change in a justice making all the difference in the world with the outcome of cases, we’ve almost heard nothing about this court over the past several months. With today, the first Monday of October, with the publication of The Nation magazine entitled “The 1 Percent Court,” it is our hope that the candidates and the country focus some of the discussion and some of the debate on the critical importance of the Supreme Court. As we know, in that Affordable Care Act case, this court and courts at the lower levels make decisions that affect every aspect of our lives, from the air we breathe, the water we drink, the kind of protections we have in our workplace. So, we look forward in the next several weeks to a very robust discussion and debate about the Supreme Court and its role in American society.

AMY GOODMAN: In a moment, Nan Aron, we’re going to be joined by the Center for Constitutional Rights to talk about one of the first cases the Supreme Court will take on, which, interestingly, is about Shell in Nigeria and Ken Saro-Wiwa—and other minority rights activists—who was killed by the Nigerian government. But I want to ask you about other cases. Talk about these cases before the Supreme Court—same-sex marriage, affirmative action—these major cases that—and campaign finance—that the court is expected to hear.

NAN ARON: Well, I think, for the moment, campaign finance litigation is being held on the side. I think until we have a change in the composition of the court, Citizens United will continue to be the law of the land.

But going to this term, this term is—there is a huge look and consideration of civil rights in this country, and we’ve got some blockbuster cases being heard by the Supreme Court. One of those cases involves affirmative action. Abigail Fisher applied to the University of Texas and was denied admission. That university has a policy of allowing the top 10 percent academic performers to be automatically eligible to go into the class. And for the remainder, a percentage of the remainder, race is one of the criteria. Fisher is suing because she was denied admission. And that case will really decide, I think, the future of racial preferences in this country. That’s one of the leading cases being heard.

Voting rights, a challenge to the Voting Rights Act. This is our most critically important civil rights statute probably ever enacted in this country. The court may accept a challenge to this statute. This is a statute enacted in law in 1965, renewed four years, as recently as 2006 by an overwhelming number of Democratic and Republican members of Congress. And there are some who basically want to gut the Voting Rights Act.

And then, finally, the other set of cases, huge cases, involve gay rights, and there is a challenge to the Defense of Marriage statute, which essentially bars the federal government from providing federal benefits to same-sex married couples who were married in those states which permit it. There could also be a challenge to the Proposition 8, which bans same-sex marriage, a case that of course was a decision widely heralded as a great decision out of the 9th Circuit. That decision overturned the ban on same-sex marriage.

So, we’ve got affirmative action, we’ve got a challenge to voting rights, and we’ve got a challenge to some really bad laws on gay, lesbian marriage.

AMY GOODMAN: Nan Aron, a law that legalized wiretapping by the National Security Agency will be argued before the Supreme Court. Do you know this case?

NAN ARON: I do. And I think, as with so many of these other cases, I must say that what we will be looking at is—are two justices on this court: Chief Justice John Roberts and Justice Anthony Kennedy, who seems to be the guy who switches positions every once in a while. I don’t think that many of us are particularly optimistic about the challenge to the national wiretap law. As we know, this administration has defended such laws. And remains to be seen what happens. But again, going back to this term, I think the spotlight is going to be on these critically important civil rights cases. And I think jury is out as to how they will be decided.

AMY GOODMAN: Finally, Nan Aron, the rightward shift of the court and what a Romney presidency would mean and what a second term for President Obama would mean, in terms of if one of the justices steps down?

NAN ARON: Well, it’s hard to talk about justices stepping down. We don’t wish ill on any of them. But I think if Romney is elected president, you know, I think he has the potential, given that there are five votes on the court, to turn the clock back. He certainly has the opportunity to cement the ultraconservative hold in this court well into the next generation. If Ruth Bader Ginsburg steps down—and she has said that she will step down around the age of 82, when Louis Brandeis stepped down—Romney could certainly cement that shift for decades and generations. If Obama is re-elected and, again, Ruth Ginsburg steps down, essentially, he would most likely replace Justice Ginsburg with another woman and another moderate-to-liberal justice. So I think we’d see things stay pretty much the way they’ve stayed now over the past several years. This election has huge implications for the future of this country, and I think a Republican presidency could certainly alter the shift and cement it well into a rightward-leaning direction for many, many, many years to come.

AMY GOODMAN: Nan Aron, I want to thank you for being with us, president of Alliance for Justice. When we come back, one of the first cases the Supreme Court will hear, and then, as we broadcast here in Richmond, Virginia, we’ll learn how it is that all of the women’s health clinics could be shut down in Virginia if a rule that was just implemented is allowed to stand. Stay with us.

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