So, here is the Court that we are stuck with for the foreseeable future (ranked in order of appointment with appointing president in parenthesis):
John Paul Stevens (Ford)
Antonin Scalia (Reagan)
Anthony Kennedy (Reagan)
David Souter (Elder Bush)
Clarence Thomas (Elder Bush)
Ruth Bader Ginsberg (Clinton)
Stephen Breyer (Clinton)
John G. Roberts Jr. (Younger Bush)
Samuel Anthony Alito Jr. (Younger Bush)
To try to give color to why I felt that the above list was relevant to today, let’s dig a fraction of a micron into the increadibly heated topic of abortion.
From the Casey Case [505 U.S. 833], here is O’Conner, Kennedy and Souter on Roe’s “essential holding”:
JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts I, II, and III, concluding that consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained and reaffirmed as to each of its three parts:
(1) a recognition of a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman’s effective right to elect the procedure;
(2) a confirmation of the State’s power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health; and
(3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
The above articulation of Roe doesn’t sound like a radical-left view of the world. In fact, this presentation seems pretty centrist.
People seem to forget that both Rehnquist and O’Conner were appointed by Reagan. In fact, I wonder how many people know that the three authors of the forgoing statement on Roe were ALL Republican nominees.
I realize that the confirmation hearings for Alito were mainly a staged circus. I also realize that we will have no idea what Roberts or Alito will do about abortion or about any other topic of interest (and they all seem to be “topics of interest” these days) until they do it.
In the meantime, however, I offer the following thoughts:
(i) when you compare Alito to Rehnquist I suspect that you will find Alito a bit less conservative than Rehnquist; and
(ii) when you compare Roberts to Kennedy, I suspect that you will find Roberts only a bit more conservative than Kennedy.
If this were a baseball game, this is how I would be marking my score card:
1. Alito in for Rehnquist;
2. Kenndey takes over for O’Conner; and
3. Roberts takes over for Kennedy.
Let’s hope I am right and let’s hope that Stevens can pitch a few more innings.
Batter up.






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