For Romney, the trick is to reassure his base that he means what he says about picking a justice in the unswervingly conservative mold without doing so loudly enough to scare the mushy middle. Along with this website statement about the current justices he sees as models, Romney signaled to his base with his selection of Robert Bork as a legal adviser. If you’re a member of the Federalist Society, that’s all the reassurance you need, since Bork still stands for a full-on assault on liberal-leaning constitutional interpretation. It’s also a perfect signal because no one other than Federalist Society types is paying attention to it. On abortion, Romney has been careful to distance himself from the extreme of eliminating the rape exception, which polls badly. And maybe that’s all he has to do, even though his party has embraced exactly this extreme in its own platform and at least a dozen of its own candidates for senate endorse this view.
Most memorably, of course, we’ve heard about outlawing the right to abortion for rape victims from Missouri Republican Senate candidate Todd Akin and Indiana Senate candidate Richard Mourdock. And Obama does talk about women’s health care on the stump, including funding for Planned Parenthood. He just doesn’t connect the dots to the Supreme Court. For that, the best place to go is the “You Don’t Own Me” video, released last week that revives Lesley Gore’s 1964 song.
If the ideological composition of the court shifts, abortion is the biggest flower in a bouquet of changes that would be ripe for the picking. There’s the future of campaign finance reform — whether to forge ahead with allowing more and more money into American politics, a la Citizens United. There’s the separation of church and state, gay marriage, and the scope of the death penalty and the rights of criminal defendants. But the court has deftly kept most of this off its docket so far this term. It’s entirely likely that the justices will hear a challenge to the Voting Rights Act before April is out, along with one to the Defense of Marriage Act. But putting off the decisions to hear these cases so far has helped to keep the court clear of the campaign’s line of fire. The same is true of the 5-4 ruling last June preserving Obamacare. That decision led to widespread speculation about the political instincts of Chief Justice John Roberts when he unexpectedly cast the fifth vote to uphold the health care law. If Roberts is indeed playing the long game, nothing will help him win more than a Romney-Ryan victory and the new allies on the bench it would bring him.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids.