November 14, 2005

How Brennan and, later, Breyer affected O'Connor.

From Cliff Sloan's piece in Slate about Joan Biskupic's new biography of Justice O'Connor:
[S]ome of [what is in the book] is new—an apparent rivalry between liberal lion William Brennan and O'Connor for influence on the court, and Brennan's clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart's departure in 1981 and O'Connor's replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan's approach to cases became particularly arch and unyielding in his later years, and even when he had O'Connor's vote he could not get her to join his opinions. Breyer's style would prove far more hospitable to O'Connor than Brennan's broadsides; like her, he was attuned to the particularities of each case and searched for common ground.
The subject of the relationships among the justices and the effect on the decisions is highly interesting -- and exceedingly hard to study.

7 comments:

erp said...

It's highly discouraging that politics rears its ugly head at what is literally, the highest level. Feelings get hurt and need to be assuaged, power plays and cliques abound. Human nature on display wearing black robes.

A thread at the VC attempts to deal with blind tenure and peer reviews. Tenure once done with, goes out of the minds of those who get in, but is never far away from the minds of those who don’t and are forced by the system to spend the rest of their lives in a search for a place at the table.

Simon said...

Slightly off-topic, but isn't it true that Scalia and Brennan actually got along pretty well? The former has spoken well of the latter, despite their ideological differences, and I don't recall reading of Brennan the same sort of broadsides with which Scalia has hit O'Connor, Kennedy et al.

I had occaision to read The Rule of Law as The Law of Rules this morning, and between that article and this O'Connor piece, I am reminded again how happy I am that we can finally move out of the O'Connor era where to so great extent the unpricipled vascillations and proclivities of one Justice have controlled Constitutional jurisprudence. Or at least, we will have done so for a term or two until Justice Kennedy realizes how much fun it is to play kingmaker.

Alito is usually described as having an incremental, case-by-case approach; in this regard, he may not be much better than O'Connor, but I am optimistic enough to think his record suggests (have I mentioned recently how delighted I am to have a nominee with a paper trail?) he will discover the virtue of bright lines and firm rules.

Troy said...

Unfortunately SCOTUS is not immune from this general rule -- all (OK almost all) groups operate like high school. Cool kids, cliques, geeks, jerks, jocks, etc. SCOTUS is too small to have all those subgroups, but small group dynamics will win out over principle for most but the strongest. That is one reason why Harriet Miers was such a scary proposition since her principles were unknown and seemed to never have been severely tested -- at least professionally (or at least on paper).

erp said...

Troy, Miers had nothing to prove and could be her own woman. I doubt at age 60 she was going to care if she had a date to the prom. She's gone her own way all her life and would have been a refreshing new breeze on the court. Also I think that even Scalia would think first before trying to brow beat her.

Alas, although Alito is no doubt a great legal scholar and has full control of his punctuation, he'll be a rather dull addition who will to his work well but no pizzazz.

P. Froward said...

I want to see an O'Connor biopic! Like a "Behind the Music" kind of thing, you know, personal torments and redemption and all that. Loretta Lynn, Ray Charles, Johnny Cash... Justice O'Connor.

Better yet, a faux documentary on the Supreme Court based loosely on the intraband hijinks of Rumors-era Fleetwood Mac might be worth doing. I like so totally see Ginsburg as the Stevie Nicks character, and O'Connor as Christine McVie. It writes itself! This could be huge.

Simon said...

P. Froward said...
I want to see an O'Connor biopic!

Also starring Nick Cage as Stephen Breyer, Catheryn Zeta-Jones as Ruth Ginsburg, Chris Barrie as Dave Souter, and Charles Bronson as Antonin Scalia.

Featuring a cameo appearence from Sir Sean Connery as Robert Bork, who turns out to have been the arch-villain all along!

tommy esq. said...

It seems to me that much of what has been written lately about S.D. O'Connor portrays her as under the sway of one or another big, strong man justice or refusing to consider joining with one who was mean to her, etc - a stereotypical woman (at least meeting the stereotype of women when many of the authors and Jsutices were in their formative years). I am curious - was she more this way than other Justices, or do people project this persona onto her as the first female Justice?