I just read an article about the current make-up of the U.S. Supreme Court and how President Obama might get a few more appointments. The article noted that supporters of legal abortion are encouraged by the prospect.
Not so fast.
At this time, there appears to be 6 votes in favor of Roe v. Wade and three for reversal, although some would argue that Justice Anthony Kenney is a wild card and should he vote to repeal Roe, the tally would be only 5-4 in favor of Roe. So, worst case scenario is opponents of Roe only need one more vote.
Whatever legal analysis you wish to believe, the fact is that an Obama appointment will not guarantee anything. Indeed, we could lose ground.
Let’s say that one of the pro-choice justices retires or dies. Make it Justice John Stevens, currently a solid pro-choice vote. Obama then gets to nominate someone. As we have seen in the past, there is no guarantee that the President is going to get exactly what he wants. When the President meets the prospective nominee, he does not ask him or her about their position on abortion. Instead, they talk in vague generalities. Then the nominee goes to the Senate where they duck and dodge the tough questions for a few days. If the nominee has no track record from previous decisions, it could very well be a crap shoot.
History is ripe with examples of Presidents getting someone different than what they expected. President John F Kennedy got Byron White, a personal friend who turned out to be a conservative. President George H.W. Bush nominated Justice David Souter, who ultimately supported abortion rights and was considered a liberal jurist.
So, pro-choice groups should not be so comfortable. If a pro-choice Justice suddenly left the bench, there is absolutely no guarantee that his replacement would be the same.