In a succession of blockbuster 5-4 rulings, the Bush Court in 2007 approved state-sponsored prayers at public school functions such as graduations and football games (overruling the 1992 decision Lee v. Weisman); went out of its way to overrule Lawrence v. Texas, the 2003 decision that had recognized a constitutional right to engage in gay sex; and struck down key aspects of the Endangered Species Act as unconstitutional overextensions of Congress's power to regulate interstate commerce.
Then, this June, the same five justices banned consideration of race in state university admissions, overturning another 2003 precedent (Grutter v. Bollinger); this ruling sets the stage for a dramatic plunge in black and Hispanic enrollments at elite schools. Two days later, the same five-justice majority overturned Roe v. Wade, holding that it was up to elected officials to decide whether to allow unlimited access to abortion, to ban the procedure, or to specify circumstances in which it should be allowed or banned.
This last decision roiled the country and immediately transformed many elections—for state legislature, governor, Congress, and the presidency—into referenda on abortion. Republican candidates at all levels found themselves facing a politically impossible choice that put many on the road to defeat: Those who declared their support for a broad ban on abortion scared moderates into the arms of the Democrats. Those who opposed such a ban, or waffled, were deserted by much of their conservative base.
One of several nuclear-option ironies is that Bush's success in ending Democratic filibusters of his nominees had the side effect of pressuring him into choosing justices more hostile to the Court's precedents than he apparently wanted, while keeping him from nominating candidates whom he would apparently have preferred.
After all, Bush has never called for overruling Roe, for allowing states once again to make gay sex a crime, for reinstating state-sponsored prayer in schools, for striking down environmental laws, or for banning racial preferences in admissions—all of which the Bush Court has now done. Indeed, the president had greeted as a great victory the now-overruled 2003 decision that race could be given decisive weight in university admissions. Attorney General Alberto Gonzales, a personal favorite whom Bush clearly wanted to put on the Supreme Court, had also praised that ruling, while giving no hint of any desire to attack any of the other precedents that the Bush Court has now dismantled.
But once the nuclear option had rendered the Democrats helpless to stop virtually any Bush nominee, conservative activists—for whom control of the judiciary had long been the Holy Grail—were emboldened to put heavy pressure on Bush from the right. They organized a "stop-Gonzales" movement and signaled that any nominee too moderate for their taste would be denounced as a betrayal of a campaign promise and would so alienate conservatives as to relegate Bush to premature lame-duck status. So Bush gave the conservative groups the justices they wanted.