Brett Kavanaugh’s Supreme Court nomination by President Trump has sparked panic among abortion-rights voters and advocates, who worry that if Kavanaugh is confirmed the court will overturn previous rulings that legalized abortion.
But there are some on the anti-abortion side who are not so sure they are winning, and not only because they think that even with Kavanaugh as a potentially decisive fifth anti-abortion vote the court could move incrementally or cautiously on abortion cases.
Rather, the concern is that nominations to the Supreme Court — though they are enormously significant — do not outweigh the damage being done to the anti-abortion movement’s long-term health because of its political alliance with President Trump.
“The culture will matter in more pervasive, long-lasting ways than the new [Supreme Court] justice(s),” wrote Thomas C. Berg, a professor at the University of St. Thomas law school and a leading expert on religious liberty and Catholic thought.
Berg wrote this month that religious conservatives risk “collaborating with Trump in irreversibly degrading their own culture.”
Charles Camosy, a professor of theological and social ethics at Fordham University and author of the book “Beyond the Abortion Wars,” agreed.
“I’ve warned pro-lifers that if you make Trump the face of the movement you will set us back two generations, just as we were on the verge of winning on public opinion,” Camosy said in an email. “Very few talk about it, but the demographic changes underway in the U.S. favor pro-lifers: people of color, and especially Latinos/as, are significantly more anti-abortion than are whites.”
The alliance between anti-abortion voters and Trump was and remains purely transactional. Trump expressed support for abortion rights most of his life but switched positions because it was a prerequisite to have any chance in the Republican primary, and religious conservatives overlooked his habitual lying, authoritarian rhetoric and marital infidelities because they believed that overturning the 1973 Supreme Court decision legalizing abortion — Roe v. Wade — was worth it.
But even by the standards of a top Trump legal adviser, there’s a real question of whether the benefits of an alliance with Trump are actually worth the cost to religious conservatives.
Leonard Leo, the executive vice president of the Federalist Society, a conservative legal group, is often described as the “mastermind” behind Trump’s Supreme Court picks. The Federalist Society has been the key institution that recruited and organized conservative jurists to form a massive farm system for Republicans to choose from for federal appointments.
And Leo, who is 53, was instrumental in creating the list of judges that Trump campaigned on, and from which he chose Neil Gorsuch in 2017 and then Kavanaugh. Leo also was a key figure in President George W. Bush’s nominations of Samuel Alito and John Roberts to the court.
Leo’s critics say he is a Machiavellian figure, working in the shadows to conceal nefarious intent. The Federalist Society’s years of work to build candidates for the courts is viewed on the left as a last-ditch attempt by religious conservatives to turn back popularly elected laws in a culture in which they are increasingly out of touch.
The notion that conservatives are using the courts to strong-arm their opponents is appealing to progressives, and Senate Majority Leader Mitch McConnell’s refusal to allow a vote in 2016 on President Obama’s nomination to the court lends credence to that impression.
Leo himself views his goals and methods in a different light. He told the National Catholic Register in May that he regards changing the judiciary as necessary but not sufficient to achieve conservatives’ social goals. “The gains we make in the life areas will be the result of cultural and social change,” Leo said. “That is why it is important to have originalist judges who understand that they have a duty to respect the constitutional system that limits government power, that gives social and cultural institutions the space they need to change peoples’ hearts and minds.”
Leo’s great complaint is that “activist judges” have gone beyond settled law and injected their own views on cases involving social issues. “Originalist judges,” the kind he favors, will be more constrained by the text of the Constitution and statute law, giving conservatives “space” to make their case on hot-button topics such as abortion, marriage, sexuality and the like.
But while it’s true that conservative positions on social issues are often portrayed, inaccurately, as reflecting the views of a small but fanatical minority, under Leo’s own paradigm, the conservative alliance with Trump is unhelpful and counterproductive. It gives the right raw political power but does little to advance their arguments culturally. Trump makes no effort to be a compelling spokesman for any kind of ethically or spiritually grounded values and related policy views. He is merely a blunt instrument to help the right achieve its short-term political goals.
Having Trump as the leader of religious conservatism makes their approach to the courts appear to be much more about coercion than it is about persuasion. And so the changing of hearts and minds that Leo talked of doesn’t seem like the priority, or even plausible, in this light.
And to Camosy’s point, the politics of abortion have shown signs of moving in an anti-abortion direction. Advances in science have moved the needle toward earlier estimates of when a fetus is viable outside the womb, the standard by which many Americans decide whether to support abortion. Abortion rights advocates point to broad public support for the Roe v. Wade ruling that legalized abortion, but a Gallup poll published in June found Americans are opposed to abortion in the second trimester and oppose it by even larger margins in the last three months of pregnancy.
The anti-abortion movement sees Roe — and the Supreme Court’s subsequent 1992 ruling in Planned Parenthood v. Casey — as the clearest example of law being imposed by the judiciary in spite of public opinion.
“Almost everyone agrees that Roe was a poorly reasoned opinion, even if they agree with the result,” Camosy said. And indeed, the criticisms of Roe from analysts who support abortion rights are numerous.
One such legal expert, Ian Millhiser, a senior fellow at the Center for American Progress, agrees with the criticism of the Casey decision.
“The problem isn’t that Casey announces the wrong legal rule — that abortion is protected by the Constitution. The problem is that its hippie-dippie, decidedly unlegal language renders its rule vulnerable,” Millhiser wrote in a scathing critique of retiring Justice Anthony Kennedy’s jurisprudence. “Justice Scalia had a point when he mocked Kennedy’s noxiously purple prose as Casey’s ‘famed sweet-mystery-of-life passage.’ And Casey also fits into another common pattern with Justice Kennedy’s opinions. When Kennedy cares about an issue, he can demand that the law remake itself overnight in his image.”
Anti-abortion supporters say they want a public debate on the issue.
“These arguments were not tested in the fire of public debate and opinion but rather imposed from on high,” Camosy said. “Even if Roe and Casey are overturned, it would merely and finally create the space for public argument and debate and a legislative process,” Camosy said.
Berg, in an email, said that “yes, religious conservatives want to overturn Roe and Casey.”
“But all that would do is return the issue to the states, so they can’t completely win. And even that won’t happen for a while; the Court will cut back on Roe/Casey before it (if it) overturns it, and overturning it will require additional conservative justices, I think (I can’t see Roberts wanting to be the fifth vote in such a controversial 4-5 overturning),” Berg said.
In this light, the conservative effort led by Leo and others is less a nefarious backdoor takeover than an organized effort to turn back a law that is often described as settled but, upon closer inspection, is more complex.
And the notion that working to influence the judiciary is anti-democratic is laughable. Judges are appointed and confirmed by politicians, who must be elected by voters. So the idea that conservatives have simply deposited like-minded jurists on the courts without popular input is not accurate.
But critics of the religious freedom movement often object that its proponents seem to want to protect only rights for those on their own side, particularly on the issues of gay rights and immigration.
Leo said on Fox News recently that “the people who are on the wrong side of the culture are the left.”
“That’s why they captured the courts. And that’s why they want to stack the courts with people who are going to check their own litmus tests on abortion and on other issues,” he said.
That statement is hard to square with current public opinion on gay rights. Leo’s comment only make sense if you buy his view that the social acceptance of gay marriage is a historical anomaly that time will correct.
In 2004, Leo explicitly said there are “five culture of life issues” and named “marriage, abortion, euthanasia” as three of the five. Cloning and embryonic stem-cell research are commonly cited as the other two.
On marriage and sexuality, the courts can be a crucial lever of power for conservatives who have been losing the cultural argument for some time. But there is little talk on this issue of overturning the 2015 decision legalizing gay marriage, Obergefell v. Hodges.
“Some religious conservatives may hope to get it overturned, but for the most part I think they just want the meaningful religious-liberty protections that only ‘conservative’ justices will provide, that is, preserve space to make their arguments and transmit and follow their beliefs,” Berg said. “And there’s very little chance the Court will overturn Obergefell.”
In this context, winning the fight to confirm a specific court appointment is less important than Leo’s broader agenda of creating space for persuasion and debate. But again, Trump has done nothing to make conservative arguments on this issue.
“Trump makes persuasion infinitely more difficult for the conservative cause, but I think that assumes too much about the sincerity — or widespread belief in — the originalist case,” said Amy Sullivan, a veteran religion reporter and author of the book “The Party Faithful: How and Why Democrats Are Closing the God Gap.”
“As in the rest of our politics, persuasion is the refuge of suckers these days. Everyone else is engaged in a more vicious battle for territory,” Sullivan said.
And then there is Trump’s constant demonization of racial and religious minorities: his proposal to suspend Muslim immigration during the 2016 campaign and his early versions of a travel ban; his whipping up hysteria over isolated incidents of violence and his exaggerated description of the MS-13 street gang to paint all immigrants as dangerous; and his picking a fight with NFL players over protesting police shootings.
All these things are at odds with the heart and soul of the conservativism that leaders such as Arthur Brooks, the president of the American Enterprise Institute, want to see prevail.
“When I think about the community that started AEI, it was [based on] … this idea of optimism and welcoming the stranger and total openness,” Brooks said in an interview.
The conservative resurgence in the post-World War II era was led, Brooks said, by Jewish and Catholic progressives who became conservative and injected new life into the movement. These newly minted conservatives “were simply not accepted in polite American life. They were barred from golf courses run by Republican Protestants. They have on their genome written this idea of ‘Do not oppress the stranger,’” Brooks said.
“The conservative movement right now is veering away from these intellectual roots,” Brooks said.
The winner-take-all, no-holds-barred attitude of Trumpism is driven in large part by religious conservatives’ fear of liberal intolerance for their beliefs. The same groups who barred Jews and Catholics from their country clubs are now no longer the majority but the minority.
“Trump is beckoning conservative Christians, especially evangelicals — who seem to be quite willing to follow his pied piping — to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others,” Berg wrote. “That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.”
Brooks said he hopes conservative legal and political gains will outlast Trump.
“Trump is not forever. Trump is temporary. Ideas can last and last. Rule of law goes on and on. Individual politicians are temporary,” he said.
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- How SCOTUS nominee Kavanaugh could enable Trump’s attack on environmental regulation
- Trump Supreme Court pick sets abortion battle in motion
- Democrats vow fight of a lifetime to keep Brett Kavanaugh off Supreme Court
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