Tuesday, July 10, 2007

How Sandra Day O'Connor became the least powerful jurist in America

Slate Magazine:By Dahlia Lithwick
During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded. With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues. ...

As one begins to consider whether O'Connor might be left with no similarly enduring achievements, it's worth pointing out that some part of this may well be of her own doing: Even at the height of her influence at the high court, O'Connor's critics tended to deride her constitutional stylings as closer to Muzak than Mozart. Justice Antonin Scalia once famously wrote that her argument in an abortion case 'cannot be taken seriously.' And her many critics often pointed to the lack of real rigor in her 'undue burden' test for abortion restrictions; her 'reasonable observer' test for whether the government has 'endorsed' religion; or her 'someday my prince will come' test for when affirmative action programs might become unnecessary in the future.

I was never a particular enthusiast for O'Connor's jurisprudence, as distinct, perhaps, from her practical judgment (on some occasions). I do believe the Court, and the society, benefits importantly from female perspectives and life experiences on the Court, which to some degree she provided.

In my humble opinion, the media fascination with O'Connor overwhelmingly reflected her possession of the often decisive "swing" vote up for grabs between factions of the Court, a position she apparently relished and capitalized on--far more than any special insight or wisdom that she possessed or demonstrated in her opinions (with occasional exceptions). Many of her "standards" were, deliberately or not, highly elastic (read, "meaningless") placeholders, providing the opportunity for her to remain in control of future decisions through her idiosyncratic personal reactions to cases, without providing much in the way of meaningful guidance to others who had to apply, somehow, her often vacuous utterings. (This all too often amounted to predicting the state of her gut, as the legal realists used to advise). Thus, with her passing from the scene, there is deservedly little left (used advisedly) of her jurisprudential imprint.

Great justices, left or right, have provided intellectual structures that engage thought and sustain the legal and jurisprudential conversations over time. These are not necessarily ideological in character, although the media rarely see beyond those labels. Great "common law" judges (a label mistakenly applied to O'Connor in my view) did not arbitrarily tip from case to case; rather, they found imaginative ways to reconcile or adjust competing tendencies in the law, utilizing the distinctive facts of particular cases to highlight thematic concerns and advance the cause of justice through careful, seemingly incremental processes--at their best, allowing us to see patterns in new and revealing ways. (Realistically, often "creating" these patterns in ways more imaginative and willful than narrowly truthful...)

I think Justice Powell approximated this ideal more strongly than O'Connor did, or Kennedy is likely to.

Were there a true left on this Court (as in the post-1938 FDR court and the Warren Court), we might perceive more of this among the so-called "liberals" of the present Court. It is largely washed out by their current need to band together in opposition to the destruction of the highly eroded monuments still (barely) standing from a prior, and better, time. In retrospect, we see the remarkable qualities of that Court ever more clearly.

No comments: