Electing the Supreme Court

By ERIC POOLEY

If you still think this is going to be an empty presidential election--a Coke-vs.-Pepsi contest in a fat and happy year when there's little at stake--take a look at a decision handed down last week by the Supreme Court. Most people don't vote for President with the Supremes in mind, but consider this: on Wednesday the court split 5-to-4 on a crucial vote, striking down a Nebraska law that bans partial-birth abortions (and almost surely taking out similar laws in 30 other states). That one-vote margin is important, because the next President is likely to nominate two or more Justices--enough to transform the court on abortion and other key issues, from affirmative action to school vouchers to gun control.

That was the argument Al Gore made last week, trying to use that "razor-thin" margin to stir up women. At an energy event in Ohio, the Vice President tossed out his script and launched a discussion of the high court's future, warning that the election "will decide whether or not we keep a woman's right to choose or see it taken away." This may sound like campaign hyperbole, but it isn't. Three of the Justices nearing retirement--John Paul Stevens, 80; Sandra Day O'Connor, 70; and Ruth Bader Ginsburg, 67 (all have battled cancer)--belong to the court's 6-to-3 pro-choice majority. Anthony M. Kennedy, usually counted among the six, dissented last week because, like many Americans, he finds the partial-birth method particularly abhorrent. Assuming Kennedy settles back into the pro-choice camp, if Stevens and O'Connor step down during a Bush presidency and are replaced by pro-life Justices, the 6-to-3 majority in favor of choice would become a 5-to-4 majority in favor of overturning Roe v. Wade.

That's still a pretty big if. Some scholars don't think a pro-life court would buck public opinion and ban abortion. (Others are sure it would.) It's possible that Chief Justice William Rehnquist, 75, will step down first--then Bush would need another conservative just to stay even. Bush says abortion isn't a litmus test, but if it is, it would be almost impossible for him to win confirmation of two avowedly pro-life Justices (think Robert Bork). He would instead try to select stealth candidates who haven't expressed views on the issue (think David Souter). That can be tricky. Souter has been a disappointment to conservatives, leading some analysts to repeat the old saw that Justices often confound the expectations of the Presidents who pick them. Here it's customary to mention that Dwight Eisenhower, asked to name his biggest mistake in office, replied, "I made two, and they're both sitting on the Supreme Court"--implying that the court mysteriously reshapes the views of those who ascend to it. But that idea doesn't withstand scrutiny, says Harold Spaeth, a Michigan State professor who has spent 40 years demystifying the court. Ike's nominations of Earl Warren and William Brennan were political deals, designed to shore up his support in California and New Jersey and made without regard for ideology, "so it's no wonder they didn't vote the way he liked," says Spaeth. "Presidents who are more careful get more predictable results. There aren't a lot of surprises."

Gore is working hard to focus attention on the court's fragile pro-choice majority. But on a great many other issues, there's a fragile conservative majority--one that would be at risk if Gore gets to do the nominating. Voters aren't hearing Bush warn against that, however. He doesn't want people to focus on the Supremes. He doesn't want to remind moderate women that he opposes the right to choose. And he knows that if people keep seeing this as a Coke-vs.-Pepsi contest, he wins.