To fill the vacancy and the vacuum of leadership, Reagan announced his plan to elevate Associate Justice William Rehnquist to chief justice and then nominate Judge Antonin Scalia of the US Court of Appeals in Washington, DC, as a new associate. In fourteen years on the court, Rehnquist had a perfect record on the legal issues that mattered most to conservatives. He had opposed a constitutional right to abortion, voted against busing and affirmative action, aggressively sought to constrict the rights of criminal defendants, supported governmental limits on free speech, and interpreted the First Amendment as permitting prayer in public schools. Reagan’s aides hoped that, as the new chief justice, Rehnquist could lead a broad constitutional counterrevolution.
Antonin Scalia, the administration understood, would be crucial to that campaign. He shared the same ideological outlook as Rehnquist, and the same boldness. A “conservative activist” on the Court of Appeals, he had been outspoken in his desire to reshape and limit the role of the federal courts, and he promised to bring to the court a good deal of mental firepower and political energy.21 “The effect of Justice Rehnquist’s elevation and Judge Scalia’s nomination will be to solidify the court’s right wing,” the Wall Street Journal noted, with special attention given to the potential “demise of the abortion right” in light of the new moves. “While the new appointments won’t force an immediate shift of course on affirmative action, school desegregation, separation of church and state and the rights of criminal suspects, they are expected to intensify the court’s internal debates over these difficult issues.” 22
In Congress, the confirmation hearings were slightly contentious. Civil rights organizations came forward with troubling allegations about Justice Rehnquist. They reproduced a memorandum he had written when he was a clerk for the court, urging Justice Robert Jackson to uphold segregation in the landmark Brown v. Board of Education case of 1954. Meanwhile, new reports surfaced that Rehnquist had engaged in minority voter intimidation as a Republican poll-watcher in Arizona in the 1960s. Despite such charges, Republican senator Strom Thurmond of South Carolina steered the nomination through the GOP-led Senate. Senate Democrats were generally compliant, allowing the nomination to move through with speed. Rehnquist was ultimately confirmed by a vote of 65 to 33, the largest number of no votes ever lodged against a successful nominee for chief justice. With all the energy and attention focused on the top spot, Scalia was easily confirmed, by a vote of 98-0. Together, the two men took their new seats in September 1986.23
The conservative energy that Rehnquist and Scalia brought in their new roles on the Supreme Court soon had a chance to be amplified considerably. Less than a year after their confirmations, Justice Lewis Powell, another Nixon appointee, announced that he too would step down. For a decade and a half, Powell had balanced the conservative and liberal wings of the court, often serving as the decisive vote in cases that were decided by a thin 5–4 majority, as they increasingly were. Whoever filled Powell’s seat, a professor at Yale Law School predicted, would become “the pivot point in the next generation of American constitutional law.” 24
The Reagan administration believed it had found the perfect candidate to take the spot and tilt the court to the right: Judge Robert Bork, the intellectual dean of the conservative legal community who would give the Right an ideological champion on the court. Reaganites also believed that it would be difficult for Senate Democrats to challenge his nomination. In terms of experience and qualifications, Bork had an impeccable resume: a tenured professor at Yale Law School, a successful corporate lawyer, the solicitor general of the United States, and, since 1981, a judge on the DC Circuit Court, the nation’s second-most prestigious court. More important for the conservative movement, Bork was philosophically in tune with the Reagan Revolution. For decades, he had stood at the forefront of a group of academics attacking the Warren court as an out-of-control “imperial judiciary” that had badly overstepped its bounds and usurped the authority of the legislative branch. Bork and others had worked to build a cohort of legal scholars and professional institutions that could ultimately reshape the courts. If he became the new “pivot point” on the court, a host of liberal rulings might well be reversed. Conservative activists were thrilled at the prospect. “We are standing at the edge of history,” Jerry Falwell dramatically announced. Bork’s nomination, he said, “may be our last chance to influence this most important body.” Members of Falwell’s Moral Majority sent nearly 22,000 postcards to the Senate Judiciary Committee urging his confirmation, as other organizations of the Religious Right weighed in as well. The Bork nomination, Christian Voice argued, was their “last chance . . . to ensure future decades will bring morality, godliness, and justice back into focus.” 25
Liberals were no less energized. They sensed that Bork offered a perfect foil for mobilizing their supporters against Reagan’s revolution in the courts. Bork, many remembered, had been the lone figure in the Nixon Justice Department willing to do the president’s bidding. When Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned on principle, Solicitor General Bork had followed Nixon’s orders and fired the Watergate special prosecutor in the infamous “Saturday Night Massacre.” For Democrats, that decision disqualified Bork from serving on the bench. They immediately set out to stop him, using hyperbolic language to portray him as a clumsy ideologue. Within hours of Reagan’s announcement, Senator Ted Kennedy sounded the war cry on behalf of the entire civil rights and civil liberties establishment. “Robert Bork’s America,” he warned ominously, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are at the heart of our democracy.” The dramatic rhetoric worked perfectly. Just as the Religious Right lined up behind the Reagan administration, so too did liberal organizations line up behind Democrats, who had retaken control of the Senate in the 1986 midterms. Organizations including the NAACP, ACLU, NOW, and Planned Parenthood banded together to block Bork, devoting nearly $15 million to the cause. Norman Lear’s organization People for the American Way alone spent a million on television, radio, and print advertisements to defeat a nomination the liberal group claimed “would turn back the clock of progress.” 26
With both sides of the political spectrum so heavily mobilized, the Senate hearings on Bork’s nomination took on larger-than-life proportions, more like a presidential election. Reporters covered the hearings that way, increasingly framing the judicial nomination as yet another partisan conflict. As Time put it, “All at once, the political passions of three decades seemed to converge on a single empty chair.” 27 Viewed in cold political terms, the campaign against Bork was masterful, and the one waged in his defense inept. Reagan was usually adept at going over the opposition and appealing directly to the American people, but this time, liberals beat him at his own game. Casting Bork as a reactionary, they swayed public opinion and cost him crucial votes in the Senate. Reagan’s liberal adversaries triumphed by using the sort of symbolism and simplicities at which Reagan had long excelled. “They took Bork’s own words and decisions and pared away subtleties, complications, and shadings,” Ethan Bronner noted. “What remained was neither lie nor truth. It was half-truth. Like the half-truths of the Reagan years, it played well.” Meanwhile, the White House decision to portray the combative Bork as a middle-of-the-road moderate fell flat. It was an impossible sell, made all the more so by Bork’s combative tone at the hearings and the fact that Reagan disappeared during the heart of the battle to go on vacation. In October 1987, just a few days after the Stock Market crashed on “Black Monday,” the Senate rejected Bork by a vote of 58–42. Conservatives were furious, belie
ving Bork had been treated unfairly. They came out of the fight determined to do the same to liberals in the years to come.28
The immediate aftermath of the botched nomination was little better. As the court opened its October term with only eight members, the Reagan White House scrambled to find a new nominee. Initially, the administration tried to stay the course, nominating Judge Douglas Ginsburg, a former Harvard Law professor and an intellectual ally of Bork’s who seemed ready to carry out their common crusade against the liberalism of the Warren court. But when social conservatives learned that Ginsburg had smoked marijuana and that his wife, an obstetrician, had performed abortions, they demanded he withdraw his name. And indeed, just ten days after his nomination had been announced, Ginsburg did just that.29 Desperate for a victory, the White House changed its approach and put forth Anthony Kennedy, a more mainstream conservative. Seen as someone who would essentially replicate the swing role that Lewis Powell had played on the court, he sailed through the Senate and was confirmed unanimously on February 3, 1988.30
Acting Up against AIDS
The conflict over the Supreme Court extended beyond its seats to the steps outside. On October 13, 1987, just two weeks before the Bork vote in the Senate, more than four thousand protesters gathered outside the court, in what was the largest mass arrest there since a 1971 protest against the Vietnam War. Hundreds of thousands of gays and lesbians had come to Washington, DC, that weekend to lobby Congress for equality and to stage a massive march through the city. Thousands stayed on to protest the Supreme Court, which had the year before upheld the constitutionality of sodomy laws that effectively criminalized gay sex. Police arrested more than six hundred protesters who tried to enter the building. Meanwhile, a smaller group of demonstrators, including a number of AIDS victims, sat down on the steps outside. “We have AIDS,” they chanted, “and we have rights.” 31
AIDS (Acquired Immunodeficiency Syndrome) represented the single greatest health crisis for the country in nearly a century. Despite its scope and significance, it had been, for much of the nation, largely invisible in its early years. Initially, the disease spread primarily through communities who had been marginalized by the mainstream, most notably gay men and heroin users. For those outside these groups, the disease seemed safely contained. In one of the first news reports on AIDS, for instance, NBC News anchorman Tom Brokaw reported: “The lifestyle of some male homosexuals has triggered an epidemic of a rare form of cancer.” 32 Within that community, though, the disease was frighteningly common. New York playwright Larry Kramer later remembered, “You couldn’t walk down the street without running into somebody who said: Have you heard about so and so? He just died. Sometimes you could learn about three or four people just walking the dog. I started making a list of how many people I knew, and it was hundreds. People don’t comprehend that. People really were dying like flies.” 33 By the mid-1980s, roughly 15,000 deaths had been attributed to AIDS.34
Initially, the response to AIDS was anemic. Most of the early struggle to curb the spread of the disease took place at the local level, but with considerable controversy. When municipal governments in New York or San Francisco moved to shut down bathhouses, where unprotected sex was common, some gay activists protested the measures as an effort to crack down on their community. The federal government, meanwhile, did nothing. President Reagan refused to mention the disease as his administration initially ignored it entirely. On October 15, 1982, reporter Lester Kinsolving asked White House Press Secretary Larry Speakes to comment on AIDS. “What’s AIDS?” he replied. When the reporter explained that it was known as the “gay plague” many in the room started laughing. “I don’t have it, do you?” Speakes joked. Walling off the White House, the press secretary insisted: “There has been no personal experience here.” Accordingly, there was no need to discuss it further.35
Despite such denials, the president soon had his own personal experiences. In October 1985, actor Rock Hudson died from the disease. An old friend of Reagan’s from Hollywood, the charismatic leading man had spent his career in the closet, hiding his homosexuality from fans and friends alike. His death shook the president. Reagan soon sought to learn more about AIDS through consultations with leading physicians, but still refused to speak out. US press coverage of the disease also increased multifold once the public knew that the beloved actor had contracted it. ABC News devoted seven minutes and twenty seconds to the news of Hudson’s death, a considerable amount of airtime compared to the coverage the disease had previously received.36 Meanwhile, the nation as a whole gained a new understanding of AIDS victims through the story of Ryan White, a fourteen-year-old Indiana hemophiliac who had contracted the disease through a blood transfusion. He successfully fought in court to attend public school after he was barred due to the hysteria of parents and kids who feared that they would contract the disease simply by being in the same building. The boy managed to survive until 1990, when he was eighteen years of age, and his public struggle with the disease placed AIDS victims in a sympathetic light for the first time. The new face of the crisis, White appeared on the cover of popular magazines like People. Meanwhile, a television special that dramatized his plight was watched by an estimated 15 million Americans.37
As the public’s mood changed, so did the administration’s. In February 1986, the president asked Surgeon General C. Everett Koop to coordinate a belated response to the crisis. The evangelical Koop had been a staunch social conservative who participated in the antiabortion movement of the 1970s. Gay rights activists had little confidence that he would take the disease seriously, but Koop quickly came to grasp the severity of the crisis and the need to act. Uncoupling the disease from the communities it had ravaged, Koop reminded policy makers: “We are fighting a disease, not people.” In his final report published that October 1986, Koop predicted almost 200,000 Americans would die of AIDS by 1991 if nothing were done. “Acquired Immune Deficiency Syndrome is an epidemic that has already killed thousands of people, mostly young, productive Americans,” the surgeon general’s report declared. “In addition to illness, disability, and death, AIDS has brought fear to the hearts of most Americans—fear of disease and fear of the unknown.” The solution, Koop insisted, was that the government needed to convince Americans to change their sexual behavior. The report called for three approaches, in descending order of effectiveness: “one, abstinence; two, monogamy; three, condoms.” 38
The administration launched an extensive public relations campaign in schools and on television to promote safe sex. The ads were surprisingly blunt. One, for instance, showed a couple preparing to have sex, before being interrupted by a stark TV warning about the disease and ultimately deciding to engage in safe sex. Conservative activists were horrified. The ad not only gave the government’s effective sanction to extramarital sex, but also encouraged the use of contraceptive measures like condoms. More important, it absolved gay men of responsibility for the disease. Pat Buchanan, then a communications official for Reagan, called AIDS “nature’s revenge on gay men” while Jerry Falwell dismissed the disease as “the wrath of God upon homosexuals.” 39 Even longtime allies of the administration broke with Reagan over the campaign. Seizing on educational literature, Phyllis Schlafly accused the president of encouraging third-grade students to engage in “safe sodomy.” 40
But activists in the gay community were even more energized. In 1986, Larry Kramer addressed the Lesbian and Gay Community Services Center in New York. “If my speech tonight doesn’t scare the shit out of you, we’re in trouble,” he began. “If what you’re hearing doesn’t rouse you to anger, fury, rage, and action, gay men will have no future here on earth.” Within five years, he told the audience, two-thirds of them would be dead because of AIDS and a pharmaceutical-medical-industrial complex that ignored the crisis.41 To prompt action, both within the gay community and the nation at large, activists began plastering posters emblazoned with a pink triangle, the symbol Nazi Germany had once used to identify and ostracize ho
mosexuals. They contained a stark slogan: “SILENCE = DEATH.” The small print underneath the triangle posed a challenge: “Why is Reagan silent about AIDS? What is really going on at the Centers for Disease Control, the Federal Drug Administration, and the Vatican? Gays and Lesbians are not expendable . . . Use your power . . . Vote . . . Boycott . . . Defend yourselves.” 42
These local efforts led to the AIDS Coalition to Unleash Power (ACT UP). Led by Kramer, the coalition used controversial and confrontational tactics to mobilize public attention and political pressure for some kind of federal response. While ACT UP’s primary goal was political change, it also helped serve as a source of community for those suffering from the disease. It felt like you were “doing something about it,” one founder recalled, “rather than being a victim.” Over the next few years, ACT UP’s numbers would swell, with some demonstrations involving hundreds of thousands. But the movement began small. On March 24, 1987, ACT UP held its very first demonstration at Wall Street to protest pharmaceutical companies’ lack of engagement on AIDS medications and to demand that the Food and Drug Administration (FDA) accelerate approval of the limited number of drugs that had been created. “President Reagan,” the crowd of 250 shouted, “no one is in charge!” 43
A week later, Reagan finally spoke out. In a stark reversal from his earlier silence, the president declared that AIDS was now “Public Health Enemy Number One.” 44 Over the remainder of his term, the government showed a new commitment to fighting the disease. Congress began earmarking funding for AIDS research in 1986, for instance, with steady increases over the remainder of the decade.45 In 1988, meanwhile, Surgeon General Koop sent out 107 million copies of a pamphlet called Understanding AIDS, which dispelled many myths about the spread of the disease and clearly explained its causes.46 As the government did more, activists ramped up their efforts to maintain the momentum. In October 1988, ACT UP activists took control of FDA Headquarters in Rockville, Maryland. Wearing T-shirts with the slogan “WE DIE—THEY DO NOTHING,” activists demanded that the agency speed up its trials of new drugs that could prolong the lives of people who had contracted the disease.47 The government responded by doing more to include gay rights organizations in the decision-making process in clinical trials and in the drug approval process. Notably, the FDA accepted the idea of a “Parallel Track,” long promoted by ACT UP, that sped up the path to approval for antiviral drugs dealing with AIDS.48 Refusing to remain silent, the activists had bent the country, and even a conservative White House, to their cause.
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