Predicting Supreme Court Justices

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I’m doing some research into the 1986 abortion case of Thornburgh v. American College of Obstetricians and Gynecologists and read a few comments published soon after the decision that should be a warning to those of us predicting Justices long-term. Here are two choice excerpts that made me laugh from Ann E. Fulks’ article in the Journal of Family Law, “Thornburgh: The Last American Right-to-Abortion Case?” (HeinOnline subscription required):

It is unlikely Justice O’Connor will attempt to moderate her ideology and it would be greatly surprising if she were to deviate from her anti-abortion stance. She can be counted on as a solid vote for any case that might call for the reversal of Roe.

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Scalia’s personal skills and congeniality could prove invaluable in effectively articulating the conservative viewpoint.

Thankfully, both predictions were wrong. O’Connor moderated in Casey and continued to do so in Carhart I (as well as other areas of the law). Scalia, on the other hand, although possibly having great personal skills in his private life, proved in his jurisprudence to have zero personal skills or congeniality with those who disagreed with him, as evidenced by his very sharp attacks on O’Connor for not going all the way in reversing Roe. Some have even claimed that Scalia’s attacks contributed to O’Connor’s moderation. If that’s so, thank you Nino!

And, especially in light of the last few weeks of this current Term, thank goodness for incorrect predictions about Supreme Court Justices.

- David S. Cohen

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