Joyful and triumphant

The religious right is in heaven at the prospect of remaking the Supreme Court.

By Michelle Goldberg
Published November 10, 2004 5:49AM (UTC)
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With the reelection of George Bush, an increase in Senate seats, and a chance to remake the Supreme Court, many Republicans are gearing up for a full-blown culture war. Writing in the National Review on Wednesday, self-appointed culture czar William Bennett proclaimed, "Having restored decency to the White House, President Bush now has a mandate to affect policy that will promote a more decent society, through both politics and law. His supporters want that, and have given him a mandate in their popular and electoral votes to see to it. Now is the time to begin our long, national cultural renewal ('The Great Relearning,' as novelist Tom Wolfe calls it) -- no less in legislation than in federal court appointments. It is, after all, the main reason George W. Bush was reelected."

Whether or not a huge turnout of evangelical voters was really the deciding factor in the election, Christian right activists are eager to take credit for the president's reelection, and claim a mandate for remaking American culture. In the past, Republican presidents have pulled a bait and switch on their fundamentalist foot soldiers, granting them favors at the margins but doing little to alter the status quo. This time, though, social conservative leaders won't be satisfied with half-measures. "Evangelical Christians really think they won this election and they want results," says Roger Robins, an assistant professor of political science and history at Marymount College who studies the religious right. "They're already warning Bush that if he doesn't do it there's going to be a price to pay in 2008."


Religious right leaders say they want several things from this administration, including curbs on abortion rights, support for a constitutional ban on gay marriage, a change in IRS laws to allow churches to engage in partisan political activity, and increased Justice Department prosecution of pornography. The administration is already sending signals that it plans to comply. On Sunday, Karl Rove told Fox News that Bush would resume the push for the Federal Marriage Amendment, saying, "If we want to have a hopeful and decent society, we ought to aim for the ideal, and the ideal is that marriage ought to be, and should be, a union of a man and a woman."

Most of all, the religious right and its conservative allies have pinned their hopes on the Supreme Court, which is only one vote away from overturning Roe vs. Wade. "If it were up to the states, not activist judges, abortion would have severe restrictions in the majority of states," says Jayd Henricks, director of congressional relations at the Family Research Council, a major religious right group. Like many conservatives, he insists that there won't be a litmus test for Bush's judicial appointments. In the same breath, though, he says, "Of course we want somebody with a pro-life persuasion, somebody who is willing to challenge Roe v. Wade. They have to be open-minded."

Bush may not even want a wrenching nationwide struggle over abortion. But with several Supreme Court vacancies expected in the next four years, he won't have much choice. When Bush gets the chance to name a new Supreme Court justice, we can expect a "very provocative, confrontational appointment," Robins says. "That forces the Democrats to be in a position where if they oppose it they can be portrayed as obstructionist, which will further energize the core."


Democrats may be able to team up with moderate Republicans like Arlen Specter, R-Pa., and Olympia Snowe, R-Maine. But the Senate that will convene next year in Washington will be significantly more conservative than the one on Capitol Hill now. There's already a push among conservative Republicans to block Specter's bid to head the Senate Judiciary Committee. James Dobson, head of the right-wing group Focus on the Family, called Specter a "big-time problem" who "must be derailed." Yesterday, incoming Sen. John Thune, R-S.D., suggested on "This Week" that some freshman senators might oppose Specter.

The question, then, might no longer be whether Bush will remake the Supreme Court. It's what the country will look like when he's through.

With Chief Justice William Rehnquist suffering from what appears to be an advanced state of thyroid cancer, Bush may soon get to appoint his first Supreme Court justice. Already, Drudge is floating the rumor that Bush is considering nominating ultraconservative Clarence Thomas as chief justice. Because Rehnquist is extremely conservative, though, the real balance won't shift until Bush gets to nominate one or two more right-wing judges to the high court. Most observers think he'll get the chance. "This is the longest interval between Supreme Court appointments since 1983," says Ralph Neas, president of the civil liberties group People for the American Way. "We're about to have several vacancies. Since 1950, there's been an average of a vacancy once every two years."


Bush has made it clear that he intends to appoint justices in the mold of Antonin Scalia and Thomas. If he succeeds, America will soon be a very different country. "One or two more Scalias and Thomases and we'll have over 100 Supreme Court precedents overturned," says Neas. "The radical right can accomplish in a four-year period what they've tried to accomplish for the last 40 years."

A realigned Supreme Court will mean much more than just the end of nationwide abortion rights. Laws affecting all aspects of American life are at stake. Scalia and Thomas have consistently voted to narrow the scope of the Voting Rights Act and of other laws banning racial and gender discrimination. In the 5-4 Grutter vs. Bollinger decision, the two of them were part of a minority that ruled against allowing affirmative action in higher education. Lawrence vs. Texas, which ruled that states can't jail gay people for having sex in their own homes, was decided 6-3, with both Scalia and Thomas dissenting. "With the change of a justice or two, Lawrence would be overturned and states would be allowed to criminalize sodomy," says Neas.


That's not all. "We're talking about clean water, we're talking about clean air, we're talking about privacy, about opportunities with respect to fair housing and voting," says Neas. "There's been a failure to communicate how radical this administration is and what a radical effect it will have on our personal lives."

Indeed, Neas is convinced that many right-wing legislators and jurists want to undermine New Deal entitlements like Social Security and Aid to Families With Dependent Children. Right now, he says, the predominant view among right-wing legal thinkers is that the "Constitution is in exile and has been in exile for approximately 65 to 70 years." To them, he adds, "Everything started going wrong in 1937 when the Social Security law was declared constitutional because most of the New Deal up until 1937 was deemed unconstitutional."

Scalia, for one, has made no secret of his belief that Americans aren't entitled to all the rights -- from sexual privacy to protections against arbitrary search and arrest -- they currently enjoy. Last year, the Associated Press quoted him saying, "Most of the rights that you enjoy go way beyond what the Constitution requires." During times of war, he added, one can expect that "the protections will be ratcheted right down to the constitutional minimum."


Christian right activists insist that secular Democrats have nothing to fear. "We don't see it as, we're trying to impose our values," says Henricks. "These battles are slow. These things are very incremental. This fear that you seem to have about these rights being taken away overnight, I don't think that's going to happen."

But a right-wing Supreme Court won't have to work overnight -- it will have at least a generation to change the country. "If they get the Supreme Court, they can lose a presidency, they can lose a Congress," says Neas. "If they succeed with a permanent tax cut and the Supreme Court, they'll basically have taken away the possibility of progressive government for decades."

Michelle Goldberg

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

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