A Shift to the Right, But Not a Seismic Shift

By all accounts, Judge John G. Roberts, President Bush's choice to succeed Sandra Day O'Connor on the Supreme Court, is a highly regarded lawyer with impeccable credentials, widely admired for his analytical skills, judgment, and temperament.

For other reasons as well, Judge Roberts will not be an easy target for the left or for the right. There is no extensive paper record of his personal views. Having sat as a judge on the U.S. Court of Appeals for the District of Columbia Circuit for only two years, he has written few decisions that can be scrutinized for evidence of his future positions on highly charged issues such as abortion and affirmative action. And unlike Robert Bork--a failed Supreme Court nominee during the Reagan administration--Judge Roberts has been free of the academic's inclination to detail his legal philosophy in articles and speeches.

As a government lawyer, Judge Roberts wrote briefs in some controversial cases. For example, as Deputy Solicitor General, he co-authored a brief in Rust v. Sullivan for the first Bush administration, which argued that the government could prohibit doctors in federally funded abortion programs from discussing abortion with patients. Some will say this is evidence that Roberts will vote to overrule Roe v. Wade, the 1973 decision recognizing the woman's right to seek an abortion early in her pregnancy. His supporters will counter that he was merely representing a client. Most senators, many of whom are lawyers themselves, will be hesitant to say that a lawyer necessarily must be held to account for the views of his clients.

Judge Roberts is indeed a political conservative, and he is likely to be a more reliable member of the conservative wing of the court than Justice O'Connor proved to be. But predictions about Supreme Court justices are risky. President Theodore Roosevelt lamented his selection of Justice Oliver Wendell Holmes who, soon after joining the high court, voted against the Roosevelt administration in an important antitrust ruling. President Eisenhower, too, regretted his decisions to place Earl Warren and William Brennan on the Supreme Court; each ultimately shed his conservative views to become a leading proponent of a liberal jurisprudence. Closer to home, if we could consult the views of President Reagan, we would be hearing second thoughts about his O'Connor pick.

While we can't predict the particulars, there is no doubt that change in the court's jurisprudence will come. Justice O'Connor, while instinctively a conservative, was a judicial maverick in many areas. In many cases, O'Connor provided a critical fifth vote joining the liberal "gang of four" (Justices John Paul Stevens, David Souter, Ruth Ginsburg and Steve Breyer). Roberts, by contrast, is more likely to join the conservative "gang of three" (Chief Justice Rehnquist or his replacement, and Justices Antonin Scalia and Clarence Thomas).

Where are the differences likely to be felt? Consider four areas of controversy:

Abortion
Roberts is not likely to vote to overrule Roe v. Wade itself. The precedent is at this point well-established, even if still criticized in conservative and some academic circles. But in keeping with his general conservative stance, which would favor allowing a greater parental role, he may well vote to support parental notification laws even when those statutes do not contain the procedural safeguards abortion providers and advocates insist upon.
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