The Court's Incremental Shift to the Right

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Justice Samuel Alito. Photo: Chip Somodevilla / Getty Images.

I'm voting Democratic in next year's presidential election. With Justice Stevens approaching 90 and several other modernist justices past what most people would consider retirement age, I want the next Supreme Court justice or three to have a broad understanding of the Fourteenth Amendment, a commitment to separation of church and state, and loyalty to the "zone of privacy" doctrine that strikes down laws against contraception, abortion, and "unnatural intercourse" as unconstitutional.

But let's get real here: The Supreme Court has not yet taken an "extreme rightward turn," as CNN legal analyst Jeffrey Toobin suggests. Chief Justice William Rehnquist, as much as I hate to speak ill of the dead, was no friend of civil liberties. In the Lawrence v. Texas (2003) sodomy law ruling, the most significant privacy rights case of the past ten years, Rehnquist sided with justices Scalia and Thomas in arguing that there is no constitutional "zone of privacy" established by the Fourteenth Amendment. This is a position noticeably more conservative than that of the majority ruling joined by the two new justices in Gonzales v. Carhart (2007). Chief Justice Rehnquist was one of the three justices on record as opposing Roe v. Wade, and by itself his retirement, if he were replaced by a moderate justice (as he may well have been), would have represented a significant shift to the left.

Justice Sandra Day O'Connor did support the "zone of privacy" doctrine that undergirds Lawrence and Roe, but shared Chief Justice Rehnquist's skepticism with respect to affirmative action statutes. It is difficult to make the argument that both Justice O'Connor and Chief Justice Rehnquist would not have joined with the narrowly constructed 5-4 majority in Parents v. Seattle (2007), given their history on the issue.

So even if we assume the worst of Chief Justice Roberts and Justice Alito--that they secretly oppose the "zone of privacy" doctrine (despite not joining in Scalia and Thomas' Gonzales dissent against it), and that they favor a passive "color-blind" approach to desegregation--then we are talking about a difference of one vote in the former case, and no difference at all in the latter. The Roe and Lawrence majority, 6-3 before the appointment of Alito and Roberts, may have narrowed to 5-4 or expanded to 7-2 or it may still be holding steady at 6-3. I recognize that doubt and uncertainty play no role in mainstream political commentary, but the truth is that it's simply too early to say where these two justices stand on the matter.

So let's bring up Toobin's most controversial statement--the one that's getting him national press:

If a Republican wins the 2008 election, Roe v. Wade will be overturned. There is no doubt about that.

Just for the sake of argument, let's make the baseless assumption that justices Roberts and Alito do, in fact, oppose Roe v. Wade and that it hangs by a 5-4 thread. Let's also make the baseless assumption that the next Republican president's first Supreme Court appointment will be a justice who--unlike Republican appointees Kennedy, Souter, and Stevens--is predisposed to overturn Roe. Even in this scenario, there's still another hurdle to overcome: the U.S. Senate.

The last time Roe appeared within one vote of defeat was in 1987, when Ronald Reagan nominated archconservative Robert Bork for the job. The Senate, which had a mere 54-46 Democratic majority, rejected him by a 58-42 margin.

At the present time, the Senate is 51-49 Democratic. Of the 34 Senate seats up for election next year, 22 are Republican seats. Four of the 22 Republican seats are open seats in which the incumbent has announced retirement, and six of the other seats are considered competitive. Only one of the twelve Democratic seats--that of Senator Mary Landrieu (D-LA)--is considered competitive.

So in order for Toobin's scenario to work, the following conditions must be met:

1. Chief Justice Roberts must turn out to be anti-Roe.
2. Justice Samuel Alito must turn out to be anti-Roe.
3. In a year in which two-thirds of Senate seats up for reelection are Republican seats, and in which ten Republican seats are considered extremely vulnerable, Republicans must somehow gain at least two seats in the Senate--and win the presidency. This would be one for the history books.
4. A Supreme Court vacancy must emerge between 2009 and 2013.
5. The Republican presidential candidate must choose to fill that vacancy with an anti-Roe justice.
6. The miraculously Republican-led Senate, in which traditionally pro-choice Republicans do not side with Democrats (as they did in 1987), must overcome Democratic filibuster threats and approve the nominee.
7. The new Supreme Court justice must perform as advertised and actually overturn Roe v. Wade. Republican Supreme Court appointees Kennedy and Souter, both advertised as justices who would overturn Roe, are now part of the Supreme Court majority supporting it.

Is this scenario possible? Of course it's possible, and the need to protect the "zone of privacy" doctrine is a compelling reason not to vote Republican next year. But to say "[t]here is no doubt about that" seems just a tad melodramatic.

See Also:

• What if Roe v. Wade Were Overturned?