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Social Selection

The Court and business.

We’ve all heard many times how Republicans are beholden to their base on social issues. But aren’t Democrats just as beholden—maybe even more beholden—to their base on social issues? Consider the way that Democrats have approached the fight over the Supreme Court vacancy.

In the wake of Sandra Day O’Connor’s retirement, Democrats almost immediately settled upon a strategy of lionizing the departing justice and holding her up as a model for future appointees. This is true of elected Democratic officials. (“If [President Bush] is true to his promise, he will use Justice O’Connor as a role model,” said Senator Barbara Boxer.) It is equally true of Democratic-affiliated interest groups. (“[Bush] can unite the country and consult with both parties in selecting a moderate, consensus nominee— someone like Justice O’Connor—or he can continue down the path he has taken with lower court nominees and name a controversial candidate who will further divide the nation,” asserted Nan Aron, president of the Alliance for Justice, the preeminent judicial lobby.)

In the broad sense, it’s true that O’Connor is a moderate. But the particular nature of her moderation makes the Democrats’ lionization of her revealing. O’Connor famously voted to uphold Roe v. Wade and has deviated from conservative orthodoxy on other social issues. But Supreme Court justices do not only rule on social policy. They also settle disputes between business and labor, consumers, and environmentalists. And here, O’Connor has compiled a staunchly pro-business record. It is a distinction Democrats ought to pay far more attention to in the coming battles over Supreme Court nominees. In vast areas of economic, environmental, and regulatory policy, a justice in the O’Connor mold would not be what the Democrats want.

O’Connor’s pro-business leanings are not a secret. As The Washington Post reported shortly after her retirement, “[B]usiness lost one of its most important allies. Appellate lawyers and former clerks uniformly described O’Connor as sympathetic to the problems of business.” She has repeatedly taken the side of defendants in product liability suits. In 1992, she wrote the majority opinion in Gade v. National Solid Waste Management Association, forbidding states from enforcing more stringent worker safety standards than those mandated by the federal government. She struck down a provision in the Americans with Disabilities Act that let disabled state employees sue for discrimination. O’Connor has actually taken a more pro-business stance than social conservative stalwarts like Antonin Scalia and Clarence Thomas. (For instance, two years ago, O’Connor joined a decision striking down a $145 million lawsuit against an auto insurance company, while Scalia and Thomas dissented on the grounds that federal courts cannot reduce awards granted in state courts.)

This is not to say that all of O’Connor’s pro-business rulings were wrong. The point is that her lionization by Democrats says less about O’Connor than it does about the political disposition of elites, and especially liberal elites. These elites—donors, the media, business leaders, politicians, and strategists- -are drawn from the ranks of the affluent and highly educated. People with high incomes and education levels tend to be more economically conservative and socially liberal than the population as a whole. The 2005 Pew survey of the electorate, for instance, found that large segments of the Democratic Party base oppose liberal positions on issues like gay marriage and the role of religion in public life. Similarly, large segments of the Republican Party base dissent from the conservative stance on questions like the minimum wage and private Social Security accounts.

Because these elites shape public opinion, there is a general tendency to identify political figures who tilt right on economics and left on social policy as “moderate.” In 1996, newspapers frequently referred to millionaire publisher and GOP presidential candidate Steve Forbes as a “moderate” because Forbes had implicitly endorsed abortion rights, despite the fact that Forbes was running on a platform that called for gutting the progressive income tax and much of the New Deal. By contrast, reporters and pundits almost never described 2000 GOP hopeful Gary Bauer—a favorite of the religious right—as a moderate, despite Bauer’s frequent dissent from the conservative economic program.

O’Connor, in many ways, exemplifies this trend. Her social moderation and strong sympathies for business put her squarely in the center of the elite consensus. O’Connor’s seminal 2003 opinion on affirmative action, for instance, took note of the many amicus briefings on behalf of the University of Michigan filed by business leaders supporting the university. (The general public, on the other hand, tends to favor strict race neutrality in university admissions.)

The identification of O’Connor as both a moderate and a judicial ideal reflects the liberal tendency to boil all questions of ideology down to one’s stance on abortion. As my colleague Jeffrey Rosen has written in these pages and elsewhere, in the long run, the most dangerous conservative legal offensive is not one against abortion, but rather one against government intervention in great swaths of the economy. (For a better explanation of this phenomenon, see Rosen’s excellent New York Times Magazine cover story from April 17.) Right now, conservatives are further away from their economic offensive than they are from striking down Roe. But, if Roe is struck down, it would merely shift the battle over abortion to state legislatures. If conservatives eventually succeeded in banning the government from regulating things like worker safety and the minimum wage, on the other hand, liberals would have no legal recourse at all.

The Republican Party seems to have a more balanced view of these stakes. It’s true that the most virulent judicial advocates on the right care most deeply about social issues. But business interests have been mobilizing for years to put their imprint on Bush’s judicial selections. Business lobbies have raised millions of dollars to push for Bush’s judicial selections, and they have provided the White House with analyses grading various candidates on their pro-business inclinations.

Liberals have to be choosy in how they deploy their very limited ability to influence the next Supreme Court pick. A justice in the Scalia mold would prefer to overturn Roe, but, on the other hand, Scalia has excoriated conservatives hoping to deploy judicial activism in the economic realm. To push for a replacement in the O’Connor mold is to side with upholding Roe above all else. You can see why this choice might make sense to the affluent social liberals who help run the Democratic Party and its affiliated activist groups. But it doesn’t necessarily make sense for the liberal agenda as a whole.

This article originally ran in the July 25, 2005 issue of the magazine.