Wednesday, July 11, 2007

More on the O'Connor "legacy"

Slate -> The Fray -> Jurisprudence: By "Arkady"
Personally, I take a little bit of sadistic glee in what's happening, even if I think the Roberts court's cases are a change for the worse. My glee comes from the fact that O'Connor is still alive, and is being forced to watch her life's work being reduced to an obscure footnote in history, right before her eyes. This strikes me as completely appropriate, since her own absurdly indefensible position in the Bush v. Gore case is what doomed her legacy to an early death. If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts. O'Connor has to watch her legacy destroyed precisely because of one of her patented pieces of legal idiocy -- what could be more fitting?

I find this harsh, and wouldn't say it myself (although I guess I am prepared to post it). I do so in part because it follows from an analysis closely parallel to my own (see prior post):

There's no great mystery about the fact that O'Connor wasn't a rigorous thinker.... That's part of why her legacy is falling apart almost instantly: she influenced the court solely by the power of her vote, rather than by the quality of her reasoning. Smarter judges leave behind arguments that are so convincing that future justices are compelled to come to grips with their ideas. O'Connor's influence evaporated the moment she retired and lost her vote.

It's not just that other swing voters happened to be followed by people predisposed to take up their baton, as Ms. Lithwick suggests. The reason successors take up the baton of a piece of legal reasoning is that it has enough intellectual merit to be an attractive way of thinking about a problem. When Sandra Day O'Connor dropped her baton at the end of her leg of the relay, it was simply too embarrassing a prop for anyone to bother taking it up.

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