YouTube is cluttered with videos that suggest that all social conservatives ever think about is securing enough Supreme Court votes to overturn Roe v. Wade. But even noted abortion flip-flopper and Republican presidential contender Rudy Giuliani makes "appoint[ing] strict constructionist judges" one of his campaign's 12 Commitments. Such a singular – perhaps, obsessive – level of focus on the Supreme Court has not been matched, at least in recent years, by activists on the left. If the Court is the defining agent of change in our time, why does the right know what it wants, while the left is still circling?
"I certainly think the Court is much more of a talking point for [conservatives] than it is for the progressive community," says Kelly Landis, press secretary for the Alliance for Justice, a national association of environmental, civil rights, mental health, women's, children's, and consumer advocacy organizations that is vocal during nomination processes. "The Court turns up as a red meat issue for the base every election cycle." Why? President Bush has failed his supporters on nearly every count except in his ability to stack the Court, in which he "couldn't have done any better," Dahlia Lithwick, senior editor at Slate, noted at the Yearly Kos Convention this year. The Court seems to be only arena in which social conservatives have been consistently winning, and it's unsurprising that they want to keep pushing while resistance is low.
Looking back both at Chief Justice John Roberts's and Justice Samuel Alito's confirmation battles is, in some ways, a retrospective of the left's recent loss of innocence. "We fought both nominations very hard," says NARAL's deputy legal director, Belinda Bulger. "The impact for choice was obvious when the last several significant cases on the court had all been 5-4." But when groups like NARAL and the Alliance for Justice stepped up to oppose Roberts and Alito, legal scholars offered little aid and Senate Democrats proved impossible to rally. During Roberts's confirmation hearings, typically moderate legal scholars failed to support progressive advocacy groups and to strenuously oppose Roberts's nomination; in fact, supporting Roberts was a way of demonstrating that one wasn't improperly partisan, Slate's Emily Bazelon has recently written. "[M]embers of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty," Bazelon wrote. "Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting." And despite predictions that Alito's confirmation battle would be "Armageddon," (as Sen. Orrin Hatch, R-UT, put it), as the Los Angeles Times observed at the time, Democrats "stopped short of threatening to filibuster" Alito's nomination. Even liberal lion Sen. Edward Kennedy, D-MA, sounded remarkably zen about the Alito confirmation proceedings: "I don't think it's wise for members to try and outline a strategy other than to make sure these hearings are comprehensive and they're done with dignity and respect for the nominee," he remarked. "The future will take care of itself." At the time, Kate Michelman, former president of NARAL Pro-Choice America, stated, "If Judge Alito's troubling views on privacy, reproductive rights, and myriad other issues do not merit serious consideration of a filibuster, it's hard to imagine what might warrant such action," but the requested filibuster never came.
Once the deal was done, the New York Times reported that the vote on Alito's nomination was second closest only to one other in 100 years of Supreme Court nominations, the 52-to-48 decision to confirm Justice Clarence Thomas in 1991. And yet shortly after Alito's confirmation, then-interim president of Planned Parenthood Karen Pearl observed many abortion-rights supporters had taken for granted that Roe, and a Supreme Court weighted in its favor, would always stand. ‘‘This nomination has moved the whole issue of reproductive health and freedoms much higher on voters' agenda, and I think they will remember this vote,'' Pearl said at the time. The vote was close, but the harsh realization that the Court could not be counted on was still dawning on progressives.
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The discrepancy in attention to the Court isn't one that reflects a real difference in priorities, insists Alliance for Justice's Kelly Landis. "I don't think it's a lack of realization [on the left] that the courts are vital to the issues that people care about. I think it is a question of what talking points and what issues are perceived to be politically popular. These very vocal social conservative groups – your Focus on the Family, your Jerry Falwell, when he was still alive – they talk constantly about the courts and they use rhetoric that really fires up their base…a level of rhetoric that also shifts perceptions of how vocal people are being." Ted Miller, communications director at NARAL Pro-Choice America, observes that the far-right, anti-choice movement could hide their anti-abortion sentiments in "code language" about the Court calculated to appeal to more moderate conservatives. "The far right understands that Americans don't want Roe overturned, so they've adopted code language like ‘strict constructionist' as a way to communicate to their base without catching the ire of the moderate majority in this country," Miller says. "We saw this happen with Roberts and Alito as well as with lower-court nominees. Unfortunately, the media refuse to connect the dots and take this language at face value." Meanwhile, on the left, Landis notes, "the progressive community talks about the courts in terms of values that we share, and rights and protections that are implicit in the Constitution and in our statutory protections – dealing with bedrock issues," rather than focusing on the Court as venue to turn to with divisive issues. But Landis cautions that she does not want to see the left mimic the vitriol of the right. "I want there to be an honest conversation about the role that the courts play in American life. What the right is doing is not advancing an honest dialogue. What the right is doing is advancing talking points that have little basis in the reality of the situation on the ground, using heightened rhetoric and the tactics of fear."
The imbalance in the amount of focus on the court coming from the presidential campaigns is clear. "If you compare the conversations between the different groups of presidential candidates, you see that the Republicans are trying to show their bona fides by talking about judges in language that Bush used – judges in the mode of Scalia, justices in the mode of Thomas – trying to demonstrate their adherence to a certain ideological agenda. You don't see a similar level of discussion of the courts in the Democratic primaries. It's there, but it's not being used as a way to throw red meat to the base in the same way it is for the Republicans," says Landis.
To be sure, Democrats also do intend (if they ever get the chance) to nominate judges with an eye to an ideological agenda – in fact, back in July, New Mexico Governor and Democratic presidential hopeful Bill Richardson stated that, if elected president, he would require that his judicial nominees would commit to upholding Roe v. Wade. "Some people call this a ‘litmus test.' I call it respecting precedent and putting women's lives above politics," Richardson said. But though Richardson's forthrightness is welcome, "litmus tests" the presidential candidates claimed they either would or would not administer to Supreme Court nominees on a variety of issues that might face the Court, may matter significantly less in the Roberts Court. The Alliance for Justice notes on its website that "litmus tests may matter less when the Court can eviscerate precedent without quite overturning it." It's not enough to ask a judge to uphold a precent, you also have to ask what they will take down in the meantime – the same being true for judges nominated by Democrats and Republicans. "The Roberts Court evinced its willingness to dismantle long-standing precedents while refusing to explicitly overturn them," the organization noted, undoing central principals of a ruling without saying it is overturning a decision. Slate's Walter Dellinger writes, "Chief Justice Roberts and Justice Alito – perhaps recalling their recent confirmation encomiums to stare decisis – have apparently decided to overrule cases without saying they are overruling them…But it's neither minimalist nor restrained to overrule cases while pretending you are not."
Why don't reproductive rights organizations have as much clout with the progressive base as do their anti-choice counterparts with theirs? Why isn't the right to reproductive self-determination a proxy for other rights and needs for autonomy for the left, in the way that abortion invites all the "culture of life" issues to the table as soon as it's invoked by the right? And why hasn't abortion, and all of incremental restrictions placed thereupon, been embraced as the canary in the coal mine for liberals, a right that, when attacked, is an early indication of further rights infringements on the way? A whole graduating class of women's studies majors, a listserv of feminist bloggers, a street-filling rally of sign-toting women activists could hash out that question for years. As Peter Boyer noted in an article in the New Yorker on the history of abortion rights in America, "[O]pposition to the decision has been a central organizing principle of the religious right," whereas, "Among liberals, support for Roe has often been grudging." Is it just the abortion "ick" factor? No, it's more than that. George W. Bush built his presidency on the backs of Christian conservatives, but while Democrats deliberately court women's votes, they haven't ever taken their mandate from feminists, for whom the right to bodily integrity and autonomy can fuel a fire as much as imagining the plight of babies never born can for those on the right. Even Sen. Hillary Clinton – the Democratic presidential front-runner who does identify one of her central issue areas as being a "champion for women" – delivered the famous "abortion can be a tragic choice" line to a group of pro-choice activists in January of 2005. In part, the use of abortion on the right is tactical – NARAL's Belinda Bulger notes, "The other side uses abortion as a proxy for other issues as well. A lot of the materials that come out about the court have a whole lot to do with Roe and with abortion. Abortion is something that they see riles their base, and they use it opportunistically" – but it's also ideological. Anti-choice activists see themselves as the only obstacle standing between unborn children and their untimely death; do progressives see themselves as the only obstacles between women's reproductive justice and a rapidly rightward leaning Supreme Court?
This fall, it won't just be the Supreme Court hearing cases that could have a huge impact on women's rights. NARAL's Belinda Bulger provided a look ahead at a South Dakota case that will have widespread implications nationally when it is decided this fall. South Dakota modified their biased counseling and mandatory delay law, adding new requirements, including that a woman seeking an abortion must be told in writing by a doctor, and the doctor must certify that she understands, that abortion terminates the life of a separate, unique human being; that constitutional relationship with the fetus, which she will destroy – "clearly, very ideological, obviously, provided to be coercive and to change a woman's mind," says Bulger. The trial court decided the case based on first amendment grounds, not even considering the choice issue, because they said it was compelled speech for the doctors. The Eighth Circuit upheld the trial court ruling, but the full panel of the Eighth Circuit has agreed to re-hear the case. This case should be decided this fall, and may be appealed to the Supreme Court. Bulger adds, "Given Kennedy's language in the federal abortion ban case, where he says that though he can't find evidence, but he's sure that lots of women regret having abortions, it's worrisome that such an issue could come before the court. What can't the state get your doctor to tell you? Or what can't the state tell you?"
In other words, it's time to pay attention – not only to who gets nominated to the Court and what his or her record is, but also to what cases come before the Supreme Court and how they are decided. Kelly Landis sounds the alarm: "It's time to pay attention when these people are being nominated. It's time to pay attention when our officials are talking about the sort of judges and justices that they would appoint."