Most Supreme Court watchers have focused on the views of newly appointed justice Anthony Kennedy for clues to the evolution of a Court that, with the retirement of Justice Lewis Powell, is now tenuously balanced between predictable liberal and conservative blocs. This absorption with Kennedy is understandable. Yet in certain controversial areas of current jurisprudence one conservative may be inching toward a pragmatic middle ground. In the areas of abortion and affirmative action it may thus be the more substantial record of Justice Sandra Day O'Connor that will shed the most light on the future path of the Supreme Court.
When O'Connor was nominated by President Ronald Reagan to the Supreme Court, in the summer of 1981, some conservatives, alarmed by her pro-choice votes as an Arizona state legislator, strongly protested. While O'Connor maintained that she was personally opposed to abortion, her refusal in her Senate confirmation hearings to reveal how she would vote, because the issue would soon be before the Court, did little to quiet the anti-abortion forces.
By the end of her first term on the Court the anti-abortion activists were wondering why they had raised all the fuss. Although the Court's 6-3 decision in the 1983 case Akron v. Akron Center for Reproductive Health strongly reaffirmed the right to abortion first declared in Roe v. Wade, Justice O'Connor wrote a harsh dissent. Pro-choice advocates were of course disappointed with O'Connor's vote, but the 6-3 margin in Akron seemed to give them some breathing room. In 1986, however, Chief Justice Warren Burger switched sides in a case similar to Akron, retired, and then was replaced by the very conservative Antonin Scalia. Suddenly the right to abortion hinged on a single vote. With Chief Justice William Rehnquist and Justices Byron White and Scalia all set to overturn Roe v. Wade, the fifth and decisive vote will belong to O'Connor, if Kennedy joins the antiabortion ranks.