A Historic Opportunity?

This week, the Supreme Court issued a ruling that will limit the ability of patients to sue HMOs for improper care associated with the incentives they give doctors to keep costs down.

With public debate still joined over President Clinton's proposed "Patient's Bill of Rights," which failed in the Senate last week by a narrow margin, the unanimous decision in Pegram v. Herdrich serves as a reminder that the Supreme Court, as much as Congress and the president, can have a bearing on the everyday lives of millions of Americans.

We tend not to pay as much attention to the Supreme Court as we do to the other branches of the federal government. We don't, for example, tend to think of the court as being controlled by the Republican or Democrats, the way we do the legislative or executive branches.

But it's worth taking notice, in this election season especially, because the next president will likely have the chance to appoint four or even more Supreme Court justices over the next four or eight years of his term or terms. Of the nine justices now on the bench, four are over 65 years old: Chief Justice William Rehnquist is 76 and associates John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg are 80, 76, and 67, respectively. The remaining justices are all in their early sixties, except for Clarence Thomas, the youngest by far at 42.

Though predicting how potential appointees will perform once on the bench is notoriously difficult, it's fair to say that either George W. Bush or Al Gore will have an opportunity to leave an enduring mark on the nation's highest court. In addition to the high likelihood that the next president will have several appointments to make, it also seems probable that he will name the next chief justice, inaugurating a new era - at least in name - in the court's history.

Today's court is largely the creation of Republican presidents. Justice Rehnquist was appointed by Richard Nixon and elevated to chief justice by Ronald Reagan in 1986. Of the eight associate justices, six were Republican appointees. Again, since predicting the rulings of an appointee once he or she is on the bench is difficult if not impossible, it should be noted that Republican appointees do not always come down on the conservative side of a ruling; nor do the rulings of Democratic appointees necessarily conform to any prescribed set of liberal values.

But by any reasonable analysis, the Rehnquist Court is more conservative than the Burger Court that preceded it. When most folks hear "Supreme Court," they immediately think of abortion and the famous Roe v. Wade case that, in 1973, affirmed a woman's constitutional right to an abortion.

Rehnquist Court rulings such as 1989's Webster v. Reproductive Health Services, which upheld the states' rights to put limits on abortion, are generally perceived by legal scholars as narrowing the scope of Roe v. Wade. In other realms, too, such as the rights of criminal suspects, the court has ut its conservative stamp on our nation's jurisprudence.

Both Bush and Gore have mentioned the role the next president will play in shaping the American legal landscape, but neither has given the issue much prominence. Bush would probably like to avoid it altogether.

He has said that he won't make abortion a litmus test for his appointees, which bothers his Christian right base, but he has also talked of appointing judges - to the Supreme Court and the federal bench - who will "strictly interpret the Constitution," which many read as code words for "judges who are against abortion." He walks a thin line between the right and moderate wings of the Republican party - and with the electorate as a whole.

And why might Gore be reluctant to press the Supreme Court issue? Perhaps he remembers what happened to the last Democrat who made Supreme Court appointments a major campaign theme. In 1984, when an aging Burger Court prompted similar speculation over who would name their successors, Walter Mondale warned America: "Don't let Ronald Reagan get his hands on the Supreme Court."

Mondale lost in one of the biggest electoral landslides in our history.