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.
“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.”