WASHINGTON--It is hard to cite a presidential election in the last 60 years, since FDR's ''court-packing'' scheme blew up in his face, where the makeup of the Supreme Court has been a decisive factor. Matters that have come before the court often become issues, but neither Democrats nor Republicans have been able to persuade most voters that the appointive power of the president should weigh heavily in their choice of a Chief Executive.
Will 2000 be different? Will Vice President Gore be able to make Texas Gov. George W. Bush's praise of the two most conservative justices, Antonin Scalia and Clarence Thomas, a tool for rallying liberals to his own cause? Can Bush get conservatives to the polls with the prospect that he will appoint what Richard Nixon liked to call ''law-and-order'' jurists?
In the low-turnout election which unfortunately seems to be in prospect, the impact on particular constituencies of hot-button issues like vouchers, guns and school prayer cannot be discounted. The latest 5-4 ruling on abortion dramatizes the impact a new Chief Executive could have with one or two appointments.
But a look at last week's final round of decisions from the Supreme Court's current term tells us that radical change is not likely to emanate from the judicial branch of government no matter who is president.
Most judges shrink from controversy. In the past few weeks, the Supreme Court declined to be drawn into the raging debates over the execution of Gary Graham, the Texas prisoner, or the repatriation of Elian Gonzalez, the 6-year-old Cuban refugee. Both those cases stirred political passions. The justices looked the other way.
When they could not avoid politically charged issues, they made a large point of asserting that they are guided by precedent, not personal preferences. In the opinion he wrote for the 5-4 majority overturning a ban on partial-birth abortions passed by Nebraska and 30 other states, Justice Stephen Breyer began by acknowledging ''the controversial nature of the problem. Millions of Americans ... (hold) virtually irreconcilable points of view'' on the abortion issue, Breyer said, but ''considering the matter in light of the Constitution's guarantees of fundamental individual liberty, this court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.''
What is notable here is the emphasis the majority judges placed on principles asserted and reasserted ''in the course of a generation.'' Abortion rights were first upheld in Roe vs. Wade back in 1973, by a 7-2 majority. None of the original majority justices were part of last week's decision. Only two of them were on the court in 1992, when a 5-4 majority approved several abortion regulations written by the Pennsylvania Legislature but reaffirmed the basic principle of Roe. The lead opinion in 1992 said, ''Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.''
Again, what they called the ''precedential force'' of prior rulings looms large in that opinion, with the justices saying that the court could reverse itself only ''at the cost of both profound and unnecessary damage to the court's legitimacy and to the nation's commitment to the rule of law.''
Some may dismiss the language of Breyer and of the three justices who co-authored the 1992 Planned Parenthood vs. Casey decision as liberal sophistry. But last week brought strong evidence that precedent plays at least as important a role in the thinking of conservative jurists.
Chief Justice William Rehnquist has led the court into a generally restrictive view of defendants' rights and has given broad discretion to law-enforcement officials. But when the court was asked to consider a statute essentially negating the 1966 Miranda decision, which requires that arrestees be informed of their right to remain silent and to confer with an attorney before giving police a confession, Rehnquist did not waver.
Writing for a 7-2 majority, he said, ''Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. ... Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.''
Miranda is 34 years old; Roe is seven years younger, but its central holding is equally ''part of our national culture.'' Could a differently constituted Supreme Court reverse it? Certainly. Is it likely? Not unless precedent loses its force in the minds of judges and is replaced by an appetite for controversy.
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