History shows difficulty in predicting Justices' behavior

By John Huebscher

	John Huebscher

Anniversaries are times to reflect on what has gone before. The anniversary of Roe vs. Wade, the 1973 court decision that legalized abortion in the United States, is no exception.

The 31 years since that decision contain many lessons. One of which is the peril of predicting the behavior of Supreme Court justices.

Of the nine justices on the Court in January of 1973, only Chief Justice Rehnquist remains. The other eight have since been replaced.

If there were a direct or predictable relationship between the policy views of the presidents who make judicial appointments and their nominees to the Court, one would have expected that Roe vs. Wade would be a memory. That has not been the case, however.

Of the eight justices to join the court in the last 31 years, presidents generally regarded as "pro-life" on abortion have appointed six. Pres. Ford named Justice Stevens. Pres. Reagan nominated Justices, O'Connor, Kennedy and Scalia. Justices Souter and Thomas were put on the bench by Pres. Bush. Most of the six won the backing of pro-life groups and were opposed by abortion rights supporters.

Only two of the eight, Justices Ginsburg and Breyer, both named by Pres. Clinton, owe their seats on the Court to a President who supported abortion rights.

However, these last two individuals were not yet on the Court in June of 1992 when the justices dealt with the most direct opportunity to overturn Roe vs. Wade in the case of Planned Parenthood vs. Casey. With six justices who were not on the bench in 1973 and all appointed by pro-life presidents, many expected that Roe might be reversed.

It didn't happen. Instead, the Court reaffirmed central aspects of Roe vs. Wade in a bitterly argued 5-4 decision. Four of the five votes to keep abortion legal were cast by the six justices named since 1973. Justices Souter, Stevens, O'Connor and Kennedy passed on the chance to repeal Roe. Only Justices Scalia and Thomas, voted in the minority.

Clearly, the presidents' pro-life views were not widely shared by the Justices they named.

Nor would it seem that a President's place on the liberal-conservative spectrum is a reliable predictor of judicial behavior. The Court that ruled on Planned Parenthood vs. Casey consisted of justices appointed by Pres. Kennedy, Nixon, Ford, Reagan and the first Pres. Bush. It is fair to say that most political observers would tab Pres. Kennedy as the most "liberal" of the group and Pres. Reagan as the most "conservative."

But the liberal-conservative test is also an imperfect predictor of judicial behavior. For Kennedy's lone appointee on the Court of 1992, Justice White, voted to overturn Roe just as he had opposed it in 1973. And two of the three Reagan appointees, O'Connor and Kennedy, voted to keep abortion legal.

The past is not an infallible predictor of the future but it does offer lessons. One lesson drawn from the history of judicial appointments since 1973 is that neither the stated policy statements nor the political orientations of presidents are reliable predictors of how their nominees will behave once they are confirmed. Rather the insulation provided by a lifetime appointment means there is no direct path connecting election outcomes and Supreme Court decisions.

(Huebscher is executive director of the Wisconsin Catholic Conference, the civil arm of the state's five diocesan bishops. Its website is www.wisconsincatholic.org.)