Conservative court strategy bears fruit as Roe faces peril

Protestors gather in front of the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year, in Washington, D.C., on Tuesday, May 3, 2022.
Anna Rose Layden
Protestors gather in front of the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year, in Washington, D.C., on Tuesday, May 3, 2022.

The conservative legal movement this week seemed on the cusp of clinching its long-sought goal of toppling Roe v. Wade, a coming-of-age moment for a well-funded and norm-shattering push to fill the federal courts with a generation of lawyers weaned on conservative legal thought.

A leaked draft opinion, reportedly backed by a Supreme Court majority, would overturn the landmark 1973 decision and eliminate federal protections that for nearly five decades have safeguarded the right to terminate an unwanted pregnancy. 

If the opinion becomes law, it would mark the crowning achievement of a carefully orchestrated, decades-long movement to secure life-tenured positions for reliably conservative judges with the power to reshape American life in fundamental ways. 

“People need to remember that the justices who are willing to overturn Roe v. Wade have been raised on a steady diet of teachings that Roe has always been illegitimate,” said Robert Tsai, a law professor at Boston University. “For most of them, it has been just a matter of when, not if, to vote against abortion rights.”

Roe v. Wade has long been in the crosshairs of the conservative legal movement, but political blowback to the decision was not immediate. Its political potency came years later when Republican Party elites seized on the issue of abortion as a way to unify social conservatives and evangelical Christians.

“The conservative backlash to Roe did not start in 1973,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “It was 1980 and the decision of Republicans to appeal to evangelicals that was the turning point.”

That decade saw the opening of a new chapter in America’s culture war, one that was a far cry from the 1960s-era free-love, counterculture ethos that arose largely in response to the Vietnam War and civil rights movement. 

“We saw the culture wars of the 1980s, but no longer with blood being shed in the streets or with people in mass protests in front of the White House,” said Michele Goodwin, a professor at the University of California, Irvine School of Law. “It became far more sophisticated.”

The Reagan-era ascendency of right-wing Christian evangelicals unfolded around the same time as the rise of the Federalist Society, which counted future Supreme Court Justice Antonin Scalia as one of its earliest backers. 

Federalist Society members often refer to the group as a “debate society.” But this humble moniker belies its role as “the most influential legal organization in the United States, ever,” as Harvard law professor Noah Feldman described it.

In his 2021 audiobook “Takeover: How a Conservative Student Club Captured the Supreme Court,” Feldman notes that six of nine sitting Supreme Court justices are current or former Federalist Society members, as are 80% of former President Trump’s appointees to federal courts of appeals. 

The Federalist Society raised $66 million from donors and spent roughly the same amount from 2017 to 2019, according to the group’s publicly available tax filings. The group has brought in millions from conservative foundations, including those aligned with GOP donors Charles Koch and Robert Mercer, and the Bradley Foundation. 

“The Federalist Society is a club for conservative and libertarian lawyers,” Feldman says in his book. “It’s focused on promoting conservative legal thought and on filling the American judiciary with like-minded allies.”

In the first two decades of its existence, the Federalist Society saw two such like-minded allies confirmed to the Supreme Court: Scalia and Justice Clarence Thomas.  

But three other Republican-nominated justices who were confirmed over roughly the same period — Sandra Day O’Connor, Anthony Kennedy and David Souter — would later end up disappointing the conservative movement with their rulings on abortion. So too would Chief Justice John Roberts, a nominee of President George W. Bush.

These less-than-reliable conservative justices would even inspire an admonishing tagline for future Republican presidents: “No more Souters.”  

As Tsai, of Boston University, put it: “The GOP got better at screening judges on this issue and bolder about who they wanted.” 

According to some legal scholars, this perceived disloyalty would serve as justification for Senate Republicans’ stunning refusal in 2016 to let then-President Obama fill the Supreme Court vacancy that followed Scalia’s death.  

“Those setbacks arguably led to their no-holds-barred approach beginning with the Scalia seat blockade,” said Michael Dorf, a professor at Cornell Law School.

Obama tapped Merrick Garland to replace Scalia in the hopes that Garland, a moderate liberal, would garner the kind of bipartisan support he received when he was previously confirmed to a federal appeals court in Washington, D.C. 

But Senate Republicans under then-Majority Leader Mitch McConnell (R-Ky.) had other plans. The Senate GOP didn’t just deny Garland votes but went so far as to deny him a hearing. Preventing Obama from seating a nominee was a position endorsed by then-candidate Donald Trump.

“I think it’s up to Mitch McConnell and everyone else to stop it. It’s called delay, delay, delay,” Trump said during a Feb. 13, 2016, presidential debate just hours after Scalia’s death.

Republicans’ reason for the blockade was that it would be improper to seat a justice in an election year — but they would abandon that principle four years later when the partisan roles were reversed.

The Judicial Crisis Network, a conservative advocacy group closely linked with Leonard Leo, co-chairman of the Federalist Society, spent $7 million opposing Garland.

As the 2016 presidential race unfolded, and with Scalia’s seat still vacant, then-candidate Trump and running mate Mike Pence increasingly campaigned on a pledge to end Roe.

“If we appoint strict constructionists to the Supreme Court of the United States, as Donald Trump intends to do, I believe we will see Roe v. Wade consigned to the ash heap of history where it belongs,” Pence told a crowd in July 2016. “I promise.”

To reassure conservatives who were hesitant about his candidacy, Trump unveiled a list of potential Supreme Court nominees he would consider if elected president. That list — which had been overseen by the Federalist Society — included Neil Gorsuch, who in 2017 would become Trump’s first appointee to the Supreme Court once he was in office.

Previously, the threshold to advance a Supreme Court nominee was 60 votes. But in 2017, to clear the way for Gorsuch, McConnell lowered that threshold to a simple majority. This so-called “nuclear option” would also allow for the confirmation of Trump nominees Brett Kavanaugh and Amy Coney Barrett, who garnered one Democratic vote between the two of them.

Barrett was tapped for the court seven weeks before Trump and Biden faced off in the 2020 election, following the death of Justice Ruth Bader Ginsburg. To Democrats incensed over what they considered the theft of Scalia’s vacant seat, ramming through Barrett’s eventual confirmation a week before Voting Day was rank hypocrisy. 

Barrett’s confirmation gained zero Democratic support. It also cemented the court’s current 6-3 conservative majority that now appears poised to overturn Roe v. Wade. Trump’s three nominees joined Thomas and Alito in voting to end Roe, according to Politico, which published the draft opinion on Monday evening.

Some legal scholars say historical contingency played a major role in the Supreme Court’s current composition. Trump picked three justices in four years, while the last three Democratic presidents – Carter, Clinton and Obama – served 20 years and picked only four justices.

“Some of that is the blocking of Garland and confirmation of Barrett, but it is also about a larger accident of history as to when vacancies occurred,” said Chemerinsky of the University of California, Berkeley School of Law. 

Several scholars pointed to the Supreme Court’s 2000 decision in Bush v. Gore, which handed the presidency to Bush, who went on to nominate Roberts and Samuel Alito, as another key factor.

Conservatives are often quick to blame Democrats for turning court battles into partisan warfare. Their starting point begins 35 years ago when Senate Democrats derailed the nomination of Reagan-nominated judge Robert Bork, an episode that left deep wounds and would fuel GOP retaliation.

But although both Republicans and Democrats have engaged in what political scientists refer to as “constitutional hardball,” the GOP has been both more aggressive and more effective, said Amanda Hollis-Brusky, chair of the politics department at Pomona College. 

“If McConnell and the Republicans were in the position Democrats are in now, you can bet they’d be going nuclear on the filibuster, adding seats to the Supreme Court and leveraging everything in their constitutional power to tip the scales of power in their favor,” she said. “Democrats are still trying to ‘go high’ when Republicans effectively ‘go low’ and continue to win.”

Karl Evers-Hillstrom contributed to this report.

Tags Antonin Scalia John Roberts Merrick Garland

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