By Paul Reidinger

THE U. S. Supreme Court is often raised as an issue in presidential elections, though seldom to great effect. The court is too obscure, really – too shrouded in black robes of ritual and secrecy – to be of much use as a weapon in our increasingly idiotic partisan warfare. And history teaches that playing politics with the court doesn't work; justices have a way of not doing what their presidential patrons expect them to do, from Earl Warren and William J. Brennan to Anthony Kennedy and David Souter.

Still, presidents, being politicians, can't seem to help hoping for politically attractive decisions from the court and trying to appoint people they believe will make them. Given George W. Bush's reptilian determination, sense of entitlement, and fetish for personal loyalty, we are probably safe in supposing he will be ideologically severe in naming people to the court – and safe too in supposing he will be appointing at least a justice or two in his second term. It already seems improbable that Chief Justice William Rehnquist, stricken with an undisclosed but apparently dire form of thyroid cancer, will return to the bench; Justice John Paul Stevens is 84, and Justices Ruth Bader Ginsburg and Sandra Day O'Connor are both septuagenarian cancer survivors.

Would not-quite-septuagenarian Antonin Scalia make a good chief justice? No. He is a gadfly, a right-wing echo of William O. Douglas, and gadflies are bad consensus-builders, as Rose Bird proved in her tumultuous run (from 1977 to 1987) as chief justice of the California Supreme Court. The always sharp Scalia has also become even more tart of tongue in recent years; in several of his written opinions, he has not bothered to conceal his contempt for O'Connor. Of course none of this is likely to deter Bush, who has amply proved he has no use for consensus and has described Scalia as his "ideal" Supreme Court justice, not least because of his open and sustained hostility to Roe v. Wade, the 1973 decision that extended constitutional privacy protection to abortion.

Roe has been under fire virtually from the moment it was handed down, but while conservatives since the Reagan presidency have often believed themselves to be within an appointment of having it overruled, that hope has been quite miragelike in its tendency to keep slipping away. Three Republican appointees – O'Connor, Kennedy, and Souter – voted 12 years ago (in Planned Parenthood v. Casey) to preserve the constitutional core of Roe. At the moment Roe commands six votes on the court, and the imminent departure of Rehnquist doesn't affect this calculus.

It is possible Bush could have the chance to appoint additional justices, but to endanger Roe, the vacancies would have to arise in the pro-Roe block, and even two fresh appointments would leave at most only a bare majority to overrule a case, decided on an emphatic 7-2 vote, that has stood as precedent for more than 30 years. To overrule Roe on a 5-4 vote would be a radical act squarely in conflict with the principle of stare decisis ("stand by things decided"), according to which – in the interest of stability, predictability, and its own legitimacy as an institution that transcends passing partisan considerations – the court hesitates to revisit areas of the law settled by its previous decisions.

But then, Bush is a radical masquerading as a conservative. He chucked decades of American foreign policy practice in favor of the "Bush Doctrine" of preemptive war, and there is no reason to think he will be any more cautious with respect to American law or the radicals he will almost certainly try to appoint to remake it.

E-mail Paul Reidinger at paulr@sfbg.com.