As Justice Potter Stewart wrote in a 1974 dissent: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government."In the affirmative action cases, as in many, many cases, O'Connor took positions based on her idiosyncratic balancing of multiple factors. That makes it easy, in the next case, to reach a different result without needing to overrule anything. If in the process of deciding the new case the Court crispens and clarifies the doctrine, it won't need to portray what it's doing as overruling.
He added, "No misconception could do more lasting injury to this court."...
Suzanna Sherry, a constitutional law professor at Vanderbilt University Law School in Nashville, Tenn., says it can be difficult to predict how a new justice may vote when legal precedents are on the line. The justice's personal views regarding a case may not control the final outcome, she says.
"A judge who thinks affirmative action is unconstitutional but who is also strongly influenced by principles of stare decisis might decide not to overrule the earlier case, but to limit it, and not extend it in the next case," Professor Sherry says.
Though we will always remember Justice O'Connor as the first woman on the Court and the person who defined the Court's balance point for a quarter century, the impression she made on constitutional law doctrine is likely to dissipate quickly -- and without the sort of dramatic overrulings that ordinary people notice.
Nonetheless, there will be lots of jabber about posturing about the value of precedent at the Senate hearings.