Why Democrats Lose at the Polls When They Win In the Courts:
Judicial Decisions' Influence on Recent Presidential Elections

By EDWARD LAZARUS

Thursday, Nov. 25, 2004

On the first day of my tenth grade civic class, the teacher asked us if we could think of a judicial decision that had directly affected our own lives. The answers we gave are lost in the sands of time, but the question certainly has gotten easier to answer over the last four years.

Judicial decisions have been decisive in the last two presidential elections. In 2000, the U.S. Supreme Court's 5-4 decision handed George W. Bush the presidency. And in this go-round, the Massachusetts Supreme Judicial Council's earlier, 4-3 decision in Goodridge v. Department of Public Health -- requiring the state legislature to provide gay couples equal access to the right to marriage -- provided the tailwind for Bush's evangelically driven victory.

In a sense, then, only two votes - votes of Justices, state or federal, that were cast in the court, not the voting booth - have decided the last two Presidential election. In both Bush v. Gore and Goodridge, a single Justice's change of heart could have changed the result.

And of course, these judicial decisions aren't the only ones that have driven - or decided - elections. Taking a somewhat longer view, as I will explain, one could also trace both Bush's victories to Roe v. Wade.

What these decisions have in common is that - regardless of their politics - they all hurt Democrats. Old progressive judicial successes like Roe (and a very occasional new one, such as Goodridge) are killing Democrats at the polls. From Miranda on, every liberal victory at the Supreme Court has, at the same time, been another building block in the "law and order," "family values," religiously-observant coalition that now controls national politics.

Meanwhile, conservatives on the Supreme Court and lower federal courts are killing Democratic causes in the courtroom. And these courts are soon to become even more conservative, if Bush is allowed to nominate as many Justices and judges as expected in his second term.

That's a disaster for Democrats, too: It is impossible to maintain a progressive judiciary without maintaining control over the presidency. Eventually, the makeup of the judicial branch will always follow from control of the White House - and the appointment power that goes with it.

In light of these realities, what are Democrats to do - besides filibuster?

The Persistent Political Influence of Roe v. Wade

As Karl Rove keenly grasped, the fate of GOP presidential candidates rises and falls with the party's evangelical base. This base would probably still exist, of course, without the motivating force of Roe. But Roe has been primarily responsible for transforming evangelicals into a dynamic and growing money-raising, vote-generating adjunct to the Republican Party.

Roe's effect, moreover, extends much further. Bush picked up an impressively high percentage of Catholics -- especially considering that he was running as a born-again Christian against a former altar-boy. Bush also scored big gains with Hispanic voters, many of whom are Catholic.

It doesn't take a polling genius to tell you why. The American Catholic hierarchy made Kerry's pro-Roe stance a religious basis for opposing him. At the all-important grassroots level, many Catholics heeded the Church's message. Just talk to Kerry volunteers who walked heavily Hispanic precincts in Colorado. They'll tell you about routinely encountering likely Democratic households going for Bush because he "values life."

If Roe Is a Powerful Constituency-Builder, What Is the Democrats' Equivalent?

Of course, Kerry's loss may be explained by any number of factors. Maybe it was a mistake to nominate another dovish Massachusetts liberal utterly lacking in the common touch. Maybe it was a mistake to nominate a U.S. Senator - a position that always creates a difficult-to- defend track record. Maybe the campaign hit the wrong themes at the convention. The list goes on and on. But Roe's effect, whether decisive or not, was plainly a major factor in the defeat.

Roe has been, for Republicans, a powerful constituency-builder. Which leads us to ask: Where are the Democratic constituencies now? The answer may be: Nowhere.

Democrats seem to have neglected the tough slog of grassroots organizing that might have improved their chances for long term success at the polls. Meanwhile, Karl Rove has long been fostering grass-roots efforts in key swing states such as Ohio, Pennsylvania and Florida

In the old days, Democrats could count on labor unions to generate the cash, and send out the troops on election day. But union members are a diminishing breed. Finding a substitute - by expanding old constituencies and creating new ones - has become imperative if the Democrats are going to avoid long-term minority party status.

The Democrats' Love Affair with Litigation: Is it Time to "Just Be Friends"?

But diligent constituency-building alone may not be enough. In a sense, progressive judicial decisions automatically build Republican constituencies, by causing a backlash at the polls.

Yet sadly, the very judicial decisions for which Democrats pay so high a price, aren't what they used to be. The Supreme Court, conservative for the last 15 years, has hollowed out the great liberal precedents, draining many of them of real practical import. Yet the Court has left these precedents standing as a symbol of liberal judicial activism.

Karl Rove could hardly have asked for a better state of affairs: He gets to have his cake, eat it too - and then eat it once again. He is able to use Roe and similar decisions to build conservative constituencies. With these decisions weakened, and the courts increasingly conservative, Republicans can still triumph in the courts. Finally, the fact that the decisions technically still stand as law, can lull Democratic voters into passing on a trip to the polls, or simply choosing other issues on which to cast their vote.

Take Roe itself as an example. Its original protections of the right to choose have been substantially diluted. The Court has ruled that poor women have no right to have abortion costs covered in the same way that other medical costs are. It has permitted states to cut off all abortion funding from public health institutions. And it has allowed lots of other regulations, too, like parental consent for minors, and purposeless waiting periods.

Yet, as a political matter, Roe and the theoretical right to choose are still there for most American women. And the safety of Roe - the fact that women think they can count on it - has had real political impact.

John Kerry won only 53% of the female vote. The gender gap cracked open by Bill Clinton all but disappeared in this last election. Why? Because the women who once were Democratic-leaning "soccer moms" became this election's GOP-leaning "security moms."

Who knows what the tally would have been if people really thought Roe's fate hung on the election? The fact is: They didn't. And I think it's a fair bet that the transformation from "soccer mom" to "security mom" was a lot easier for many women in light of their belief that the right to control their own bodies was not in any immediate jeopardy.

The Democrats' Trap: Judicial Victories Mean a Price Will Be Paid at the Polls

For Democrats, there is no easy way out of the trap of being haunted by judicial victories at the polls.

Consider gay rights. One might consider suggesting that gay rights be pursued through legislatures, not courts - to avoid the cost of decisions like Goodridge. But the truth is that the arguments made in court in favor of gay rights tend to be no-brainers: Allowing marriage to some, but not all, does violate equal protection.

In addition, sending gay rights issues to legislatures may only court failure: Consider the success of the anti-gay-marriage referenda offered in the recent election, and then consider that it is those voters whom the legislators are supposed to represent, and on whom they must depend for re-election.

Perhaps all one can say at this point is that Democrats need to channel the same genius they once put into their litigation ideas and strategies, into the creation of new political ideas and strategies. Litigation, lately, hasn't been the savior we've hoped it would be.

And that shouldn't be such a surprise: If history is any guide, more often than not our courts have proven to be deeply conservative institutions. Pick almost any era at the Supreme Court other than those presided over by John Marshall and Earl Warren and you'll find little progressive to cheer about.

Nor should it be surprising that the elite, relatively elderly and affluent members of the bar whom we appoint to life tenure as judges would rarely prove radical or even meaningfully progressive in their thinking.

So modern-day would-be Thurgood Marshalls ought, perhaps, to turn their talents toward becoming Democratic Karl Roves. Republicans have been smart enough to be able to sell even really bad ideas - such as repealing the inheritance tax - to the very voters those ideas will hurt. How far could Democrats get, if they were equally clever about selling good ideas that actually will benefit the voters Democrats want to court? It would be nice to find out.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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