Monday, July 11, 2005

Will O'Connor's Replacement Bring a Sea-Change on Abortion?

From the latest issue of The Economist:
The judicial consequences of Justice O'Connor's retirement have been somewhat exagerrated. Ralph Neas of People for the American Way [a liberal group] has said that if the court reflected the views of its most conservative members--Antonin Scalia and Clarence Thomas--there would be a legal revolution restricting abortion, civil rights, environmental protection and privacy. Whether that is true or not, replacing Justice O'Connor will not bring it about.

Justice O'Connor was a moderate conservative. In the 21 cases this term that ended in five-to-four decisions, she voted on 16 occasions with Messrs Scalia, Thomas, and Chief Justice Willian Rehnquist. She has usually been with them in states' rights cases, voted with them in Bush v Gore and this term supported their dissent in Kelo v City of New London (where the court upheld local-government powers to make compulsory purchases of private property).

The main difference between her and the three harder-line conservative justices is that she tended to base her decisions on the narrow facts of a case, rather than on sweeping legal principle, leaving room to change her mind later. So if she were replaced by a doctrinaire conservative, there would be a change, but not necessarily a dramatic one.
Clearly, there are different kinds of conservative. The nomination that President Bush sends to Capitol Hill is likely to have a lasting effect on what sort of conservative the Republican Party is going to be in the future. Some potential nominees could endanger the Republican coalition. Others could totally turn off those of more moderate leanings or those who think that conservative includes, but isn't confined to, reversing Roe v Wade. On the other hand, the President's nomination could prove to help the Republican Party.

Those are political consequences, though. Judicially, I'm inclined to agree with The Economist. Even a doctrinaire conservative on the court will be dealing with thirty-two years of precedent when it comes to abortion, assuming the new justice is confirmed in time for the fall term. That person will likely lead the charge for a slow reversal, rather than a wholesale undoing of Roe. There is too much law to reverse in one fell swoop.

However that may be, it's going to be an interesting summer.

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