The U.S. Supreme Court’s historic decision to criminalize late-term abortions – a ruling that further imperils the legal right to abortion, as codified in Roe v. Wade - is vivid proof that elections do make a difference, and that the high court’s composition deserves top-tier ranking as a campaign issue.
Back in 2000, when George W. Bush was pitted against Al Gore, it was widely believed that it wouldn’t really matter which guy won the race. Ralph Nader was hardly the only person who believed that there was scant difference between the two major parties, and their respective nominees.
The nation was at peace, the economy was decent, Bush and Gore were competing for moderate swing voters remember “compassionate conservatism?”), and a lot of people noted that, especially on pocketbook issues, the two candidates seemed barely indistinguishable: they both embraced free trade, endorsed a balanced budget, and believed that quality education was crucial in the high-tech era. Those prospective voters who were paying sporadic attention might well have concluded that the main difference between Bush and Gore was that the former seemed a tad light in intellect, and that the latter seemed insufferably superior in manner.
Yet there were fundamental differences. Gore, long before he won the nomination, tried to sound the alarm in Iowa about one crucial issue: “If you want a Supreme Court majority that is keeping with the philosophy of Jerry Falwell and Pat Robertson, that is what is at stake in this election.” He was arguing that if voters wanted to protect (among other things) the right of women to make private decisions about their own bodies, then voters should choose the Democratic nominee in 2000; but if they wanted those rights curbed or eliminated, they should vote GOP in 2000.
At various junctures in that election campaign, candidates and activists and outside observers (myself included) pointed out that Bill Clinton’s successor would have the opportunity to shape the high court for a generation; that four of the nine judges at the time were at least 65 years old; that three of those oldsters – John Paul Stevens, Sandra Day O’Connor, and Ruth Bader Ginsburg – were longstanding supporters of the Roe ruling; and that the next president would likely get the chance to tap several like-minded nominees.
GOP candidate Bush, with his eye on suburban swing voters that year, repeatedly sought to downplay the court issue, insisting that America “wasn’t ready” for a Roe repeal, and that he merely wanted to defuse the polarized discussion. But activists in Gore’s camp didn’t buy it, and tried to argue that voters should view the future of the high court as a major campaign issue; as academic Carole Joffe contended a month before the 2000 election, “Neither Bush’s evasive chirping about how good people can disagree when he is asked about abortion at a national forum, nor Nader’s impatient dismissal of the differences between Bush and Gore, should blind supporters of reproductive freedom to the stakes in this election. They are monumental.”
But the future of the high court never became a major issue; Bush and Gore basically split the vote in the suburbs, where abortion rights are generally viewed sympathetically, and they split the women’s vote as well. Nor was the high court’s composition a major issue in the 2004 race; neither John Kerry, nor President Bush, talked about it much, even though it was again clear that the direction of the closely-divided bench might well depend on who won that November.
And now we have fresh evidence that the high court, and the president who staffs it, matter greatly.
Yesterday, thanks to the votes of Bush appointees John Roberts and Samuel Alito, the court narrowly decreed – for the very first time – that an abortion procedure should be banned with no exceptions for safeguarding the woman’s health. Seven years ago, in a similar case, the court rejected that thinking; the swing vote was O'Connor. Now she's gone, replaced by Bush appointee Alito. He swung the other way.
The new majority overruled the decisions by six different federal courts, and swept aside longstanding evidence compiled by medical experts (notably the American College of Obstetricians and Gynecologists), who had argued that relatively rare late-term abortions (known in medical parlance as “intact dilation and extractions”) might sometimes be necessary to protect the health of women suffering from high-risk pregnancies. Until yesterday, the high court over the past three decades had decreed that any restrictions on the right to abortion must include a legal waiver if a woman's physical or emotional health was imperiled; not so anymore. And, as a result of this ruling, anti-abortion activists feel emboldened to push for more.
Since this is hardly the first time that the judges have demonstrated its influence on the everyday lives of Americans, how come the high court’s composition has never been of paramount interest to voters? And - given what happened yesterday, and given the fact that the GOP might be one John Paul Stevens illness away from finally zeroing in on Roe, is it conceivable that the court could become a top-tier issue in 2008?
I’ve been tracking this lack of voter interest since I started covering national politics back in 1992. The judges at that time were also chipping away at Roe, but when I asked some smart people whether the high court was therefore emerge as a major issue, they dismissed the idea. William Galston, a political analyst and occasional Clinton adviser that year, said it best: “I remember when I was a campaign adviser to (Democratic nominee) Walter Mondale in 1984, and Mondale worked hard to play the Supreme Court card (against Ronald Reagan), but it didn’t work. Or course, that year, a Democratic ticket of Jesus and Moses wouldn’t have gotten 45 percent against Reagan. Still, as an issue, it doesn’t work. Fear of the future isn’t as potent as something based on current experience. People are going to be fixated on what’s wrong right now.”
Even dedicated court-watchers tend to agree with that view. In the autumn of 2004, with Bush and Kerry battling, Elliot Mincberg of the liberal People for the American Way told me that, as an issue, the high court “doesn’t have the immediacy of Iraq or the economy. It doesn’t lend itself to the daily back-and-forth of a campaign, because maybe court appointees won’t happen at all, or maybe it’ll take five years for a new majority to coalesce.” In addition, as I have often been told, Americans generally don’t like to see the high court brought into politics, because they prefer to view the judiciary as being independent and separate from the partisan fray. (Even though it isn’t.)
Some women’s rights groups are now hoping that the high court will play well as an issue next year, that yesterday’s ruling will underscore the future stakes for female swing voters in particular. And they’re only mirroring sentiment among their opponents, who have long believed that shaping the judiciary should be a top-tier political crusade. Given the high court’s newly documented willingness to intervene in women’s lives, it would appear that the activists on both sides can make a credible case for spotlighting judicial clout during the ’08 race.
But will most voters care? Not if the past is prologue.