Votes and Consequences

During a week of heavy airline travel, I finally got around to reading Jeffrey Toobin's justly acclaimed account of recent developments on the Supreme Court, The Nine.

While usually described as an insider account of life among the Supremes, Toobin's narrative really concentrates on the steady development, and chronic frustration of, the activist conservative legal movement that began back in the 1970s, which has always been obsessively focused with the goal of overturning Roe.  For these determined conservatives, the great outrage of recent decades has been the accession to the Supreme Court of "liberals" appointed by Republican presidents, ranging from Warren and Brennan by Eisenhower, to Blackmun (author of Roe) and Powell by Nixon, to Ford's one appointment, Stevens, to Kennedy and O'Conner by Reagan, and to Souter by Bush 41. 

As Toobin explains, the real watershed moment for conservative legal activists was their successful effort to force the withdrawal of Bush 43's nomination of Harriet Miers, and the substitution of Samuel Alito, epitomizing their refusal to trust a conservative president to appoint conservative justices, and their demand for unambiguous proof that a prospective Supreme would be willing to reverse past "liberal" decisions, especially Roe.

In an particularly fascinating chapter of The Nine, Toobin shows how very close the Court came to reversing Roe back in 1992, when the defection of O'Conner and (more surprisingly) Kennedy produced the Casey decision that explicitly reaffirmed Roe on a 5-4 vote.  Now O'Conner's gone, and in two decisions involving legislation banning so-called "partial-birth abortion," Kennedy's shown himself willing to accept all sorts of legislative undermining of Roe.  Three Justices--Thomas, Scalia and Alito--would definitely support an immediate reversal of Roe, and so would Roberts if the votes were there. 

That's why the antiabortion movement specifically, and the Christian Right generally, have made up their minds that John McCain's election is transcendently important.  He's gone far out of his way to reassure them on judicial appointments--most notably in a May speech at Wake Forest University that adopted every imaginable conservative "dog whistle" on the subject, but also in his Saddleback Forum remarks.  The selection of anti-abortion ultra Sarah Palin as McCain's running-mate was the clincher. 

As Toobin points out, the three Justices most likely to retire during the next four years are Stevens (who is 88 years old), Ginsburg (who has chronic health problems) and Souter (who's reportedly been wanting to retire for years).  These are three of the four "liberals" currently on the Court, and all of them have pretty evidently been hanging on in hopes that the right kind of president would be elected to appoint their successors. 

Add it all up, and it's as certain as anything in politics that the election of John McCain would produce a Supreme Court that will reverse Roe v. Wade, and also consolidate the conservative judicial revolution on a vast array of other subjects, from privacy and civil liberties to employer-employee relations.  Indeed, we'd probably have the most judicially active conservative Supreme Court since the 1930s, when the Court battled to block much of the New Deal. 

Conservatives understand this, but I'm not sure progressives really do.  In the limited realm of abortion policy, it's pretty clear that anti-abortionists have made gains in recent years due to a status quo that protected most abortion rights, making it difficult for pro-choicers to mobilize voting decisions in their favor. 

That could all change this year, and one of the toughest but most important decisions by the Obama campaign will be about whether to make that clear.