While the last term of the U.S. Supreme Court was a mixed bag for most objective observers, with decisions pleasing both the left and the right, it’s pretty clearly being viewed as a catastrophe by the (usually religious) cultural conservatives longing for the reversal of reproductive and LGBTQ rights. In what was arguably the best opportunity in nearly three decades for the Court to begin the process of unraveling the constitutional right to abortion created by Roe v. Wade in 1973 and reaffirmed (with modifications) in Planned Parenthood v. Casey in 1992, Chief Justice John Roberts sided with the Court’s four liberals in invalidating a Louisiana law that would have shut down most if not all of that state’s abortion clinics under a dubious licensing requirement.
Even more ominously from their point of view, Trump’s first Supreme Court nominee, Neil Gorsuch, whom religious conservatives had avidly backed because of his outspoken views on religious liberty, penned a landmark opinion (also supported by Roberts) holding that discrimination against LGBTQ people in employment decisions is flatly prohibited by Title VII of the Civil Rights Act. Bostock v. Clayton County represented a key extension of rights deemed entirely illegitimate by many of those whose support for Trump in 2016 depended significantly on his promises to reshape the Court and select only from a pre-vetted list of reliable conservatives.
So we are now hearing the word betrayal from cultural conservatives who have long felt ill served by Republican Supreme Court appointments over the years. President Trump quickly responded to the brouhaha by announcing he would soon release a new and improved list of SCOTUS prospects. What that means seems to be up in the air, though it probably means fewer jurists whose views on hot-button constitutional issues are in doubt, as Politico’s Gabby Orr reports:
“There are few new judges who are very good and could be added to the list, but the main thing that needs to happen is to cut the list way down by removing anyone who has not been proven to be a rock-ribbed conservative,” said a … Republican close to the White House. “The whole purpose of the list is to give hard-line conservatives a guarantee that we will not be betrayed again.”
“If the president wants to keep social conservatives, he needs to put out a much shorter list of the people who would actually receive real consideration for a vacancy in the next year … A long list of 20 promising but unproven judges just isn’t good enough,” this person added.
Conservative legal beagles have generally favored younger SCOTUS prospects to ensure a long tenure on the Court. But Gorsuch’s “betrayal” may push in the opposite direction by improving the odds of those with extensive judicial track records. Some conservatives, however, want more: a vetting process aimed at specific assurances on key areas like abortion. Missouri senator Josh Hawley, who is very close to old-school Christian Right thinking on cultural issues, wants to impose a flat-out litmus test, according to the Washington Post:
“I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided,” Hawley said in an interview with the Washington Post. “By ‘explicitly acknowledged,’ I mean on the record and before they were nominated.”
Hawley added: “I don’t want private assurances from candidates. I don’t want to hear about their personal views, one way or another. I’m not looking for forecasts about how they may vote in the future or predications. I don’t want any of that. I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”
Hawley may be trying to create a counterweight to the position taken by another Republican senator, Susan Collins, who has said she would not vote to confirm any Justice who “demonstrates hostility” to Roe v. Wade (she cast a key vote to confirm Brett Kavanaugh, however, after he made enough noise about Roe’s status as settled precedent to satisfy her alleged standard). Hawley may also, however, want to place a thumb on the scale for such existing Supreme Court prospects as 7th Circuit Court of Appeals judge Amy Coney Barrett, who pretty clearly thinks Roe was “wrongly decided”:
As a law professor at the University of Notre Dame, Amy Coney Barrett marked the 40th anniversary of the Roe v. Wade decision in 2013 with a presentation that included specific wording about the decision used by other conservative jurists.
Barrett, now a Circuit Court judge on President Donald Trump’s short list of potential Supreme Court nominees, spoke about her own belief that life begins at conception. She also said the framework of Roe had “essentially permitted abortion on demand” and “recognizes no state interest in the life of a fetus,” according to news accounts including an article in Notre Dame Magazine in 2013.
Abortion-rights supporters call that [language] “code,” saying it is commonly used by activists and jurists who either want to overturn the landmark ruling granting women the right to terminate pregnancies or to allow so many restrictions it is rendered irrelevant.
Then again, Roberts himself might have met Hawley’s litmus test when he penned a brief as deputy solicitor general in George H.W. Bush’s administration calling for a reversal of Roe. Suspicions of “betrayal” aside, it is possible to regard a 47-year-old Supreme Court precedent as settled enough to respect even if you think it was “wrongly decided.”
It is important to recognize that whatever list or vetting process Trump agrees to for a hypothetical second term in order to keep conservative Christians onboard and energized for November is a different matter than a SCOTUS vacancy this year. If one arises, the speed of confirmation may become more important than extensive vetting — particularly if it looks as if Trump is headed for defeat. And the nature of the vacancy itself would matter a lot. If, for example, Justice Ruth Bader Ginsburg has to resign her seat for health reasons (she recently acknowledged a recurrence of pancreatic cancer), then anyone Trump nominated would represent a major shift to the right in the balance of power on the Court. If, however, Justice Clarence Thomas were to abruptly resign, conservatives would insist on someone matching or (if possible) exceeding his extremist stance on multiple issues.
Probably the thing to look for in the immediate future is whether the anti-abortion movement presses other Republican senators into emulating Hawley’s position. If so, it could have a ripple effect, as conservative lawyers and judges who hope there is a Supreme Court seat in their future realize the rules have changed and they need to be much more “out there” about their commitment to a judicial counterrevolution.