Marci A. Hamilton

How a Supreme Court Case Tore the Republican Party in Two

By MARCI A. HAMILTON


Thursday, April 30, 2009

The Supreme Court's decision in Roe v. Wade -- recognizing a woman's right to choose an abortion with the consultation of her doctor -- has served as a kind of cement, bonding conservatives who are opposed to the decision. The ruling brought together evangelical Christians, Catholics, and Orthodox Jews into a novel political marriage. And in turn, their united power led to a revolution within the Republican Party.

In the course of this revolution, the party was transformed from one identified primarily with fiscal conservatism and libertarian principles, to one primarily identified with the evangelical Christians who rose to their apex of power in the Bush Administration. Now, however, single-minded opposition to the decision appears to be the reason for the decreasing size (and, therefore, power) of the Party.

Alienating Moderates Such as Senators Specter and Snowe

Sen. Arlen Specter's recent shift from the Republican to the Democratic Party was apparently motivated in part by his wish to avoid a Republican primary. He's been in the Party for decades, and understandably felt betrayed by the fact that more conservative forces were willing to force him to go through a rough primary, rather than allowing him to proceed into the election as the party's consensus candidate. There is much more at issue here than that consideration, however. Top Republicans have been trying to play this as solely a move by Specter, but it is equally a move by the Party itself.

The morning after Specter switched sides, Sen. Olympia Snowe wrote in a New York Times op-ed that the Republican Party is risking permanent minority status by shoving aside those in the party who are moderates like Specter and herself. Nationally- syndicated radio personality Michael Smerconish said the same thing on television: Super-personalities like Rush Limbaugh and Sean Hannity have become the de facto leaders of a party with no true leaders. They have no time or respect for so-called "moderates" and have worked hard to turn the label "Republican" into a synonym for someone who agrees with them.

How did we get here? If moderates are no longer welcome in the Republican Party -- to the point that the Party will not do everything it possibly can to keep Arlen Specter from becoming the Democrat Party's veto-proof 60th vote -- then this is truly a new era. Archconservatives have been saying for years that they never would have appointed Justice Sandra Day O'Connor, also a moderate, but this is the first hard evidence that the Republican Party will make no effort whatsoever to keep moderates in the fold. It is one thing to prefer one Republican over another for an appointment to the Supreme Court, and quite another to happily escort long-time members of the Party out the door to join the opposing camp.

Roe v. Wade Is the True Fault Line Dividing the Republican Party

The question, then, is what does "moderate" really mean in this context? I would posit that Roe v. Wade is the subterranean fault line here. Those Republicans who are within the "fold" are those opposed to Roe v. Wade. Those who are actually being forced out, like Specter, or who understandably feel as though they are, like Snowe, have been protective of Roe. There is no other issue that can be trusted as much to explain who is in and who is out with respect to the Party at this time. (The abortion issue, of course, is not an isolated one; it also extends its tentacles to the stem cell debate, public support for contraception, and conscience clauses, which I discussed in a previous column.)

What is most fascinating to me, though, is that those who are pushing moderates out of the Party are the people who came into the Party on a single issue – opposition to Roe. They were one-issue voters and activists, and they have now accumulated enough power within the Party to push out those who disagree with them on that one Supreme Court case and issue. They are doing it with glee, if one listens to the radio talk shows taking Specter down. And they seem to be doing it without any regard for the fact that they are losing power, and will continue to lose power if they stay on the path that pushes those like Specter out the door. Moreover, power never stays still. As those in control of the Republican Party now seek to push moderates out, those like Snowe and Specter react and speed the Party's trip downhill. Thus, there is never a "balance" of power in politics so much as there is constantly shifting movement. Right now, the direction of that movement, which is gaining speed, does not bode well for those currently in the Republican enclave.

The Ultimate Fault Lies Not with the Court, but with the Party

Thus, the Supreme Court can be credited with this current division within the Party, but that does not mean that Roe was necessarily wrongly decided. There is no constitutional requirement that there be two political parties of relatively equal strength, or even that there be parties at all. Parties are political, pure and simple, and to the victor go the spoils.

If the feelings of Specter and Snowe signal a new willingness to publicly reject the new Republican Party and, implicitly, to buck its strong anti-Roe politics, then the Party really is in trouble. The current composition of the Supreme Court, which was dictated in no small amount by anti-Roe sentiment, will be of no assistance if the Party wants to revive itself. The conservative Justices are poised to either overturn Roe or water it down even further. They will be a constant reminder for years, if not decades, of the fault line that pushed the Party apart. To the extent that the Justices take a hard line against Roe, and political moderates see such a concrete result as attributable to the Bush Administration's close relationship with the anti-abortion movement, those same moderates are likely to find more comfort on the Democrat side of the line, rather than the Republican side.

The Supreme Court, therefore, will have initially triggered a Republican downturn of tremendous proportions. But the real culprit in the downward trending of the Republican Party is the takeover of the Party by those who treated Roe as the only issue. The United States is far too complex, large, and populated for any single issue to successfully unite a political party. The Supreme Court may be the least powerful branch, but let it never be said that it is powerless. If Republicans do want to ever return to power, that return is clearly not going to be accomplished by revisiting the recent past.



Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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