How a Senate Race in Colorado Proves That “Hobby Lobby” Is Good for Democrat(ic Candidate)s

Reporting on Politics and Policy.
June 30 2014 12:00 PM

How a Senate Race in Colorado Proves That “Hobby Lobby” Is Good for Democrat(ic Candidate)s

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Democratic voters, take notice

Photo by Brendan Smialowski/AFP/Getty Images

If you're a progressive in the year 2014, you think of the Supreme Court and the Jaws theme starts thud-thudding in your brain. Ever since 2006, when Sandra Day O'Connor's swing vote was replaced by Sam Alito's Federalist Society autopen, the high court has been slanted right. Anything you believe in can, theoretically, be undone until it slants the other way. Gay rights aside, no progressive cause is safe from the strict-constructionist interpretation of the Constitution. Today's Harris decision is already widely understood as Alito laying the groundwork for a stronger future case to basically implode public-sector unions.

This is why the Hobby Lobby decision is narrowly helpful for Democrats.

Hear me out! There is a reason why progressive legal observers keep nervously asking if Ruth Bader Ginsburg will retire soon. Democrats have a strong 55-seat Senate majority until January 2015. According to current polling, even if the rest of the close Senate races broke their way this year, come January that majority would be reduced to 50 seats. (Vice President Biden would break ties.) That assumes that Democrats don't bungle away the seats in states that voted for President Obama, like Colorado and Iowa. In a Senate controlled by Republicans, in the new toxic environment of SCOTUS warfare, it's very hard to imagine Ginsburg (or Stephen Breyer) being replaced by someone as reliably progressive.*

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On the margins—as seen in the inboxes of anyone who gets end-of-quarter fundraising emails from candidates—Hobby Lobby elevates an issue that scares Democratic voters. The birth control coverage mandate was widely popular before today's decision. Democrats in Colorado and Alaska had been battering their likely opponents by portraying them as enemies of birth control and choice. In Colorado—an example I like because both Sen. Mark Udall and challenger Rep. Cory Gardner are quite adroit—Udall hammered Gardner's support for a fetal personhood amendment, and Gardner countered late by coming out for making birth control more available. He reacted to the Hobby Lobby decision with similar acrobatics:

The court made the right decision today to protect religious liberty and the First Amendment. The Food and Drug Administration now needs to move quickly to make oral contraceptives available to adults without a prescription.

Gardner quickly blurted "religious liberty!" and scrambled to portray himself as pro-contraception access. The lesson: Democrats have more to gain if voters (unmarried women especially) start to believe that the 2014 election will chip away at reproductive rights. It's the sort of thing Democrats always say, about every election, but here's a fresh issue, a fresh reminder that they might not be happy with the party but do they really want more Alitos on the bench?

*The last Supreme Court nominee to lose a nomination outright was Robert Bork, defeated by the Democratic Senate elected in 1986. Technically, sure, any SCOTUS nominee can be filibustered, but this has not been tried since the 1968 Abe Fortas nomination, and not tried at all in the modern era of the 60-vote threshold.

David Weigel is a Slate political reporter. 

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