A lot of liberals, and a lot of conservatives, think that President Bush is speaking in code when he says he would nominate to the Supreme Court "strict constructionists" who would "faithfully interpret the law, not legislate from the bench."
After all, didn’t Bush once cite Antonin Scalia and Clarence Thomas as his model justices? And haven’t they both voted to overrule Roe v. Wade? To uphold laws making homosexual acts criminal? To outlaw government use of racial preferences? To allow state-sponsored school prayers (at least at graduations and football games)? To require states to subsidize religious instruction (at least in some contexts)? To overrule Miranda v. Arizona? To strike down many federal laws as violating states’ rights?
Well, yes — but. Bush surely has committed himself to naming to the Court conservatives who would not invent new constitutional rights. But some conservative jurists are far less radical, and far more deferential to established precedents, than others. And if you imagine that Bush wants to pack the Court with Scalia/Thomas clones determined to sweep aside Roe and a raft of other liberal precedents, ask yourself this: What would that do to Republicans’ hope of securing their fragile majority status, and to Bush’s legacy?
The answer is that just as liberal activist judges have driven millions of moderates into the Republican fold, conservative activist judges could drive them back out. Karl Rove must know this. So must Bush.
Take the abortion issue. In a September 2004 National Annenberg Election Survey, 55 percent of respondents answered, "Oppose" and 39 percent said, "Favor" when asked, "Do you personally favor laws making it more difficult for a woman to get an abortion?" In a January 2003 CNN/USA Today/Gallup poll, 53 percent of respondents said that Roe v. Wade was "a good thing" for the country, compared with 30 percent who said it was a "bad thing." In other recent polls, respondents opposed "tougher restrictions on abortion" by 50 to 43 percent; 50 percent responded, "Pro-choice" and 43 percent answered, "Pro-life" when asked whether they were "pro-choice or pro-life on abortion"; and 61 percent of "Catholic likely voters" agreed "strongly" or "somewhat" that "it should be legal for a woman to have an abortion," while 38 percent disagreed.
To be sure, opinion polls also show that majorities favor somewhat stricter restrictions on abortion than Roe would allow. But it seems pretty clear that headlines such as "Bush Court Overrules Roe v. Wade" would be a disaster for the Republican Party. And its candidates would then have to choose between alienating most voters by mounting a futile push to outlaw abortion (which the Court would not do) and alienating the most loyal Republican voting bloc by not doing so.
Most, if not all, conservative legal thinkers believe that the justices’ sudden voiding of the abortion laws of all 50 states in 1973 was an indefensible usurpation of legislative power with no basis in the Constitution. (In 1973, even most liberal, pro-choice scholars considered Roe indefensible, or at best, unwise.) But since then, the justices — including two Reagan appointees and one George H.W. Bush appointee — have repeatedly and emphatically reaffirmed Roe. This, plus the substantial public acceptance of Roe, has led some in the conservative legal network to say privately that it is probably too late in the day to overrule Roe. Even the passionate foe of abortion John Ashcroft accepted Roe as "the settled law of the land" in his January 2001 testimony seeking confirmation to be attorney general.
And remember: Any Bush effort to engineer the overturning of Roe would succeed only if two of the six pro-Roe justices (as well as ailing Chief Justice William Rehnquist, who has consistently voted to overrule Roe) step down; if Bush can identify three nominees who would vote to overrule; and if all three can survive ferocious Democratic attacks and Senate filibusters.
The radical-right Bush justices that liberal groups fear would also be out of step with public opinion, probably outnumbered on the Court on other big issues, and in some cases, out of line with Bush’s own stated positions. Specifically:
• Although most voters agree with Bush’s opposition to court-imposed legalization of gay marriage, any decision by Bush-appointed justices to allow imprisonment for homosexual acts — by overruling last year’s 6-3 decision in Lawrence v. Texas — would be seen as intolerant and would hurt Republicans at the polls.
• Although conservative justices have generally sought to restrict use of racial preferences, any decision broadly banning them — by overruling last year’s 5-4 decision in Grutter v. Bollinger — would contradict the statements supporting Grutter by both Bush and his current nominee for attorney general (and justice-in-waiting) Alberto Gonzales. A decision overruling Grutter might also jeopardize Republican gains among Hispanic voters.
• Although most conservative legal thinkers believe that the justices have gone too far toward purging religion from the public square, Thomas is the only justice in the past two decades to suggest anything as radical as overturning the Court’s 42-year-old ban on organized prayer in public school classrooms.
• Although Scalia and Thomas voted in February to require states that subsidize secular study at the college level to do the same for students preparing for the ministry, they lost, 7-2, with Rehnquist writing the majority opinion in Locke v. Davey.
• Though Scalia and Thomas similarly voted in 2000 to overrule Miranda, they lost 7-2 in that case (Dickerson v. U.S.) too, with Rehnquist again writing the opinion. Respondents approved the decision by a whopping 86 to 11 percent in a Newsweek poll.
• Although Thomas has suggested that he would push states’ rights to the point of dismantling many major federal regulatory laws, no other justice has joined him, and only Scalia has displayed an appetite for doing much more than nibbling around the edges of the vast federal regulatory apparatus. Bush has given no indication that he wants to engineer a dramatic shift toward states’ rights, and he probably could not, even if he tried.
Finally, Bush’s claims to be a believer in "judicial restraint" would be undercut if Bush-appointed justices were to sweep away all acts of Congress that impose liabilities on states, or to use property rights to cripple environmental laws, or to impose a flat ban on legislative use of racial preferences, or to launch a wholesale attack on established precedents. The essence of judicial activism is an immodest eagerness either to strike down democratically enacted laws by stretching the Constitution or to overturn Supreme Court precedents that have become settled law.
The tricky problem for Bush — and for Senate Democrats — is the near-impossibility of knowing which, if any, liberal precedents a prospective justice would overrule, let alone what he or she would do when faced with now-obscure issues that may take center stage in decades to come. "You shoot an arrow into a far-distant future when you appoint a justice, and not the man himself can tell you what he will think about some of the problems that he will face," in the words of the late constitutional scholar Alexander Bickel.
Liberals worry that the Bush team is secretly quizzing candidates to make sure they would overrule Roe v. Wade. I suspect that Bush may secretly hope his nominees will not overrule Roe. But whatever Bush wants, I believe Bradford Berenson, who worked in the White House counsel’s office from 2001 to 2003, when he says, "In our conversations with prospective nominees to the federal bench at all levels, we never discussed this subject, not only out of virtue but also out of fear of being accused of applying a litmus test."
The ethical taboo against privately asking nominees how they would decide specific issues is a bit anachronistic in an era when the justices set a broad array of major national policies and when confirmation proceedings have come to resemble election campaigns. But the taboo remains almost as strong as when Abraham Lincoln said, "We cannot ask a man what he will do [on the Court], and if we should, and he should answer us, we should despise him for it." Lincoln added, "Therefore, we must take a man whose opinions are known." But very few Supreme Court prospects have made their opinions known on such questions as whether Roe should be overruled.
All things considered, it seems to me unlikely that we will see a Bush Court radically changing the law on abortion, gay rights, race, religion, or states’ rights. I do worry that Bush might pick people who are predisposed to bow to his own claims of near-absolute presidential power to override constitutional liberties in the name of fighting terrorism. If the president does that, the Senate should bar the door.