I have no desire to defend President George H.W. Bush or his execrable appointment of David Souter to the Supreme Court, but I was confused by the chronology of the Turnock v. Ragsdale case laid out by Scott P. Richert in the February issue (“Robert Bork, R.I.P.,” Cultural Revolutions).  In December 1989, when that case was scheduled to be heard, there were three justices on the court (William Rehnquist, Byron White, Antonin Scalia) who were clearly anti-Roe and would eventually vote that way in Casey.  Anthony Kennedy would have made four.  At the time, some conservatives still held out hope that Sandra Day O’Connor might vote to overturn Roe, although she had clearly signaled otherwise in Webster.  She would have made five.  But the justice who retired in 1990 and was replaced by David Souter was none of those five but William Brennan, one of the four justices (along with Thurgood Marshall, Harry Blackmun, and John Paul Stevens) who was clearly pro-Roe.  The appointment of Souter did not lead to an increase in the number of pro-abortion justices, but maintained the status quo.

It is true that the delay of a Roe reconsideration by more than two years gave Kennedy more time to “grow in office”; perhaps in 1989-90 he would have withstood pro-abortion pressure instead of folding as he did in 1992.  On the other hand, the delay also created time for the replacement of Thurgood Marshall by Clarence Thomas in 1991, which provided another vote against Roe.  That would have been enough to overturn Roe in Casey, had Kennedy remained steadfast.  Unless O’Connor had voted to overturn Roe in Turnock, which seems unlikely, Roe could not have been overturned then.  It would likely have been upheld 5-4 (same result as in Casey, just a slightly different alignment) or 6-3, had Kennedy voted as he would do in Casey and not as he had done in Webster.  I understand why a case that originated in Rockford is so close to Mr. Richert’s heart, and I share his belief that the Republican Party and its leaders have repeatedly betrayed the pro-life cause, but the story of this betrayal—that Bush 41 deliberately quashed Turnock so as to buy time to increase the number of pro-abortion justices—seems to make no sense unless a pro-life justice had retired in 1990, which did not happen.  Because of the replacement of Marshall by Thomas, the chances of overturning Roe were greater in 1992 than they had been in 1989-90, not less.

If Bush did intervene as described, perhaps his motive was not to prevent an overturning of Roe, but an upholding of it.  If O’Connor and/or Kennedy had been revealed as a traitor in the 1989-90 term, there might have been greater pressure on Bush in 1990 to appoint a clearly anti-Roe justice to replace Brennan, not the “stealth candidate” Souter.  That scenario is rather complicated, but it is more consistent with the known facts than the simpler scenario Mr. Richert lays out.

The only other alternative would be that Bush mistakenly thought White would retire rather than Brennan.  Although White did retire just three years later, he was considerably younger than three pro-abortion justices (Brennan, Marshall, and Blackmun), so that would have been an odd thing for Bush to expect.

—James Kabala
Providence, RI


Mr. Richert Replies:

If, as Mr. Kabala posits, President Bush wished to prevent Roe from being upheld in 1989, it would seem to follow that the purpose of appointing the “‘stealth candidate’ Souter” in 1990 would have been to sneak an anti-Roe vote onto the Court.  Yet, since Mr. Kabala does not say that he believes that Bush was hornswoggled by Souter, I’m not sure what point he is trying to make.  The simpler explanation suffices—namely, that George H.W. Bush’s 1987 conversion to the pro-life cause, after a long career of supporting abortion, was just as much a display of political opportunism as his “Read my lips: no new taxes!” pledge.  In that light, Souter’s appointment makes perfect sense.

My argument about the higher likelihood of overturning Roe in Turnock (1989) than in Casey (1992) has as much to do with the substance of the cases (Turnock went more directly to the heart of Roe than Casey did) as with simple vote-counting, and it takes into account that every year that has passed since 1973, the likelihood of overturning Roe has decreased, irrespective of the makeup of the Court.  That may seem counterintuitive or even illogical, but my point is simply this: The Court reflects the broader culture much more than it shapes it.  That was as true in 1973 as in 1992: Roe facilitated the culture of abortion; it did not create it.

In other words, Kennedy’s “growth” on the question of abortion, like O’Connor’s before him, was likely a matter of time, as Mr. Kabala himself seems to acknowledge.  By intervening to remove Turnock from the docket in 1989, George H.W. Bush bought Kennedy the time that he needed to “grow.”