Amid the wave of excitement among conservative organizers over the prospect of reversing access to abortion for the first time in nearly 50 years – since Roe v. Wade affirmed a constitutional right to the procedure in 1973 – there are growing fears about how the conservative legal movement will fare if its own appointees on the bench stop short of dismantling the landmark abortion ruling.
“There are a lot of conservatives who will wash their hands of the whole enterprise if conservatives don’t come out the right way on these cases,” said Mike Davis, a Senate Judiciary Committee aide who founded the Article III Project, a conservative judicial advocacy group.
The mounting concerns among social conservative stakeholders and anti-abortion activists – which come as two abortion-related cases are set to be decided by the Supreme Court in the coming months – stem from a series of episodes where Republican-appointed justices have sided with their liberal counterparts in cases involving LGBTQ rights, the Affordable Care Act and religious liberty – blindsiding conservative groups that helped shepherd them through the Senate confirmation process and sparking tense debates inside the conservative movement over the vetting process of nominees.
Many of these groups considered it a betrayal when Justice Neil Gorsuch, the first of former President Donald Trump’s three appointees to the court, penned the majority opinion last year in Bostock v. Clayton County, which added sexual orientation and gender identity as protected classes under Title VII of the 1964 Civil Rights Act.
More recently, Justices Amy Coney Barrett and Brett Kavanaugh alarmed conservative court watchers with their lines of questioning during oral arguments in United States v. Texas, a case involving the Texas law known as S.B. 8, which prohibits most abortions after about six weeks of pregnancy. The two Trump appointees “appeared openly skeptical of the construction of the Texas abortion law … sending a chill down the spines of conservatives,” read a piece by Rachel Bovard in The Federalist, an ultra-conservative media outfit, just days after oral arguments in the case.
Bovard, who serves as senior director of policy at the Conservative Partnership Institute, told CNN the two abortion-related cases will directly challenge the stature of prominent conservative legal groups like the Federalist Society, which tends to wield significant influence over the judicial nomination process under Republican administrations.
“They can no longer be the sole imprimatur of the Supreme Court if the conservative legal movement has led us to produce judges who cannot overturn what the conservative legal movement regards as blatantly unconstitutional,” Bovard said.
While many court observers expect the Supreme Court to curtail abortion rights in some form via Dobbs v. Jackson Women’s Health Organization, prominent conservative figures from former Vice President Mike Pence to Judicial Crisis Network President Carrie Severino have begun setting expectations for an outcome that fails to completely overhaul Roe.
“Legally, I think this question is very easy, but you might have some justices who get hung up on the question of stare decisis,” Severino said, referring to the legal doctrine of precedent.
“At the end of the day we are dealing with fallible human beings,” she added, arguing that “no matter how much vetting and effort is put into the process,” it is still possible that Trump-appointed justices could disappoint conservatives once more.
In a speech on Tuesday hosted by his own policy organization Advancing American Freedom and the anti-abortion group Susan B. Anthony List, Pence said the Supreme Court should send Roe “to the ash heap of history,” while acknowledging that how the justices will rule is far from certain.
“Now more than ever, we need our conservative majority on the Supreme Court of the United States to return the question of life to the states and the people,” Pence said. “While I cannot say how the Supreme Court will rule, today I can say with confidence the tide has turned for the pro-life movement.”
The former vice president’s remarks could exacerbate concerns among conservatives who already fear the court will sidestep its first opportunity in decades to completely dismantle abortion rights in the United States – triggering major upheaval inside the conservative legal movement and depressing donor enthusiasm for anti-abortion groups that have long promised a new horizon in their battle against reproductive rights if the Supreme Court gained a conservative majority.
But instead of directing their ire toward Pence and Trump, whose administration cemented the court’s conservative majority with the appointments of Kavanaugh, Barrett and Gorsuch, Davis said the Federalist Society would likely bear the brunt of conservatives’ frustration. The group has previously come under fire from social conservatives who claim that it prioritizes judges who are reliable allies on regulatory matters but less so on social issues.
“They will say the Federalist Society’s way of picking judges is wrong. I understand that inclination because we’ve been disappointed so many times, but once you start normalizing judicial activism – whether it’s on the right or the left – we’re going to lose that fight long term,” Davis said.
Defenders of the current conservative approach to judicial nominations have dismissed efforts to impose litmus tests on nominees, such as the declaration that Sen. Josh Hawley made ahead of Barrett’s confirmation hearings to “vote only for those Supreme Court nominees who have explicitly acknowledged Roe v. Wade was wrongly decided.” Severino said the ultimate job of a judge “is not to be picked so that they advance certain policy outcomes.” Davis said the only litmus test for conservative judicial appointees “should be courage.”
But others say that if the Supreme Court disappoints conservatives with its upcoming rulings, the prevailing lesson is that the vetting process for nominees must be drastically revised – even if that means dismantling the conservative legal movement in its current form. Advocates for such change said more stakeholders should be consulted in the vetting process and more probing questions about how potential judges might rule in certain cases should be encouraged.
“If the court gets this wrong, future administrations will need to consult a far wider group of people than they have previously, and we need more people in the room asking more direct questions,” Bovard said.
Should the court decline to end the legal right to abortion and permit legal challenges to a restrictive Texas law banning the procedure after about six weeks, Pence and Trump would lose a major talking point as they weigh separate White House bids in 2024. The duo has long praised the trio of conservative Supreme Court appointments they oversaw as one of their crowning achievements – using it to reassure abortion opponents that they would likely see Roe undone in their lifetime.
“Today, we gather on the verge of what may be a new era in American history – an era in which all human life is one again cherished and respected,” Pence said Tuesday to the anti-abortion crowd.