July 9, 2007

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

Dahlia Lithwick thinks the new Court is ignoring O'Connor's "theoretical framework." Cue the quip: "She had a theoretical framework?!" But let's play along:
It's tempting to argue that this is the nature of being the court's swing vote: You're too powerful while on the bench, and then you're obsolete once you retire.
Lithwick abandons this theory when presented with a counterexample. (Justice Powell's idea for premising affirmative action on "diversity," which seemed "weird" at the time of Bakke.)

So maybe it's something about the way O'Connor's did her swing voting:
... Charles Krauthammer once wrote of O'Connor that "she had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation." Buried in this criticism was the implication that her legal framework would go easily, once she was replaced by someone with a "serious" constitutional theory. Samuel Alito, her successor, is probably that someone, at least from Krauthammer's point of view. Certainly no one would suggest calling him a "moderate," a "pragmatist," or a "common-law judge." Alito has an agenda far broader than O'Connor's one-case-at-a-time approach. It's hardly surprising that he has not taken up where she left off.
What Krauthammer calls "stable ideas about constitutional interpretation," Lithwick calls an "agenda."

IN THE COMMENTS: Our house troll says -- among assorted insults:
Krauthammer, huh? Now THERE'S a legal scholar.
I'm pleased to get the push to respond to that:
Yes, chosen by LITHWICK to illustrate the side of the argument she wanted to minimize. On the liberal side, she chose to quote the dean of a top ten law school. So who's doing law in a bluntly political way: me or Lithwick? The answer is obvious.


Mortimer Brezny said...

Well, this takes you back to Scalia's test. Do my stable ideas about contitutional interpretation ever lead me to outcomes that go against my ideological preferences? And do I consistently apply my interpretive theory across various provisions of the Constitution at the same level of generality (or have a coherent justification for not doing so in certain kinds of cases)?

Someone whose "stable ideas about constitutional interpretation" lead him to always choose the outcome he prefers without bothering to be consistent or to provide coherent justification could be said to have an agenda.

Say, the difference between Douglas and Brennan.

Tim said...

"What Krauthammer calls "stable ideas about constitutional interpretation," Lithwick calls an "agenda."

Right. And were Laurence Henry Tribe to describe it as "stable ideas about constitutional interpretation," Lithwick would agree.

Good thing she doesn't have an "agenda."

Oops. My bad.

Maxine Weiss said...

What would Althouse do without her precious public spaces?


You know, we are heading toward a society when all public places (third spaces) will be removed and cease to exist.

Where will Althouse go then?

ricpic said...

O'Connor, a clear case of the Peter Principal, would have made an exemplary school marm.

ricpic said...

Oops. Principle. I'm another clear case of.

Tim said...


Methinks you correct the first time.

MadisonMan said...

I've always thought that underneath her robes, SDO'C was a pragmatic individual. Government needs more pragmatism and less dogmatism.

Cedarford said...

ricpic - O'Connor, a clear case of the Peter Principal, would have made an exemplary school marm.

Pretty much.

O'Connor did not grow in stature on SCOTUS - she shrunk. Scalia properly eviscerated her in dissent after dissent as a vapid minor league thinker with no clear judicial philosphy (even to herself) - who voted mainly as she dilettantely chose to based on how she "felt" personally about things when she got up that day.

And in her senile phase, she appeared readily manipulated by Breyer and Ginsburg into "using accepted International Law" to supplant the Constitution in guiding SCOTUS to new law opposing the death penalty but supporting abortion and corn-holing.
And the media loved and lionized her as "First Minority Ever To..." and casting her role as the All-Wise Justice who would listen to the conservative and activist factions and then act as the Final Decider. Rather than admit dear old Aunt Flora armed with two elite clerks could have added requisite footnotes and "legalise" verbiage to justify her whimsies...

Now that the lionization is over, scholars can honestly analyze her contribution. Which appears to be minimal, like Warren Burger's, once bootlickers stopped paying homage to "The Great Chief".

While O'Connor wasn't the worst, I commend Scalia for continually lambasting her if it helped drive the Peter Principle's luminary into early retirement. At least Scalia openly respects Breyer and Ginsburg as far brighter and more intellectually honest than O'Connor - even if he disagees with their decisions.

rcocean said...

Scalia couldn't stand O'conner and with good reason. She seemed to think she was still a legislator and not a Supreme court justice.

Its not surprising she supported affirmative action since she was the ultimate AA baby.

Her elevation to the SCOTUS from the Arizona legislature can only be explained by the lack of other qualified female Republican jurists in 1981 and her friendship with Renquist.

Sloanasaurus said...

It's like anything else. If something has good reasoning behind it, it will survive the up and down cycle. However, something that was decided upon a whim will go out with the next whim.

Thank god for Alito/Roberts.

dave™© said...

Krauthammer, huh? Now THERE'S a legal scholar.

Glad to see your really letting your wingnut flag fly, lady. Quit pretending otherwise. You're a brownshirt through and through.

We all know it. Admit it. You'll feel a whole lot better.

Kirk said...

No, MM, about the last thing we need more of in the courts is pragmatism. That kind of results-oriented thinking means we fail to get the one thing we probably need more than anything else from the "rule of law", and that is predictability.

Peter said...

O'Connor's "pragmatism," so often expressed by her as an effort to balance conflicting interests, seems to this reader far more consistent with the role of a common law judge (it is a justice system!) that is a rigid ideology that provides predictability. The strength of the Anglo-American common law system has always been its capacity to do justice in individual cases. That common law's case-by-case determinations deprives us of the predictability of a civil law system has been a "weakness" we've always embraced. O'Connor would not have deprived a prisoner of an appeal because he filed his appeal late, in accordance with the instructions of the judge hearing his case.

Ann Althouse said...

"Krauthammer, huh? Now THERE'S a legal scholar."

Yes, chosen by LITHWICK to illustrate the side of the argument she wanted to minimize. On the liberal side, she chose to quote the dean of a top ten law school. So who's doing law in a bluntly political way: me or Lithwick? The answer is obvious.

Thanks for giving me the push to point that out. And don't trip over yourself on the way to the wine box.

jeff_d said...

I guess Lithwick's central premise is that the conservatives, and Alito in particular, are motivated by "sweeping political agendas" whereas O'Conner and Powell preferred "small, humble acts of pragmatism." The problem is that there is nothing so inherently political as the pursuit of pragmatism as a guide to interpreting the constitution. Lithwick has got it completely backwards.

Pragmatists are by definition seeking political results at the expense of laying down fixed constitutional principles that will be of use in future cases. The first and most obvious reason O'Conner's various balancing tests won't age well is that they provide next to no guidance and thus will have to be constantly reviewed in future cases.

This term, for example, we had the Louisville and Seattle school district cases in which the Court had to figure out whether the special Grutter rule that applied to higher education (where the need for diversity was said to be especially compelling) also applied to K-12 schools. That Grutter exception was the ultimate little piece of pragmatism - an artifice designed to produce the result in Grutter. It is no surprise that it wasn't extended this term, nor is it even clear that O'Conner herself would have extended it.

Now, a quick observation about Bakke. I think Bakke is a curious exception rather than proof of the general premise that Powell's centrist opinions have staying power. Bakke was the most plausible rationale for a political result the court's liberals and centrists desperately want: the freedom to use "benign" racial classifications outside the narrow confines of ameliorating the effects of past discrimination. Bakke has endured because it is the only halfway plausible argument left for a desired political result. It is an historical oddity.

Seven Machos said...

Well, then, Peter, O'Connor would have made a great district judge in a state court somewhere.

Being a Supreme requires broader thinking.

Paul Zrimsek said...

Saying "Our house troll" around here is a bit like saying "that picture of a flower I posted last week". Lacks a certain specificity.

Ann Althouse said...

Nuh uh. Everyone knows who that "house troll" is.

Mike said...

I agree with Kirk re: your desire for more pragmatism from the Court, MM. I'm with you for more pragmatism from the other branches of government. But it seems to me that the job of the Court is to compare the results of legislative or executive pragmatism with the Constitution and declare, when necessary, "you can't do that".

SteveR said...

Paul, Start with her post, observe the reference (I think you did that), go into the comments and find Ann's comment and scroll up and find the Krauthammer comment and bingo! there's your guy.

Absent that straightforward approach, a semi frequent visitor could have scan the commenters and seen the only one meeting that definition.

Paul Zrimsek said...

and bingo! there's your guy.

Noooo! Really?

SteveR said...

Saying "Our house troll" around here is a bit like saying "that picture of a flower I posted last week". Lacks a certain specificity.

Noooo! Really?

tc said...

You know,Ann,

Sandra Day O'Connor may be my cousin...so I hope nobody picks on her. She did what she thought was right at the time. Even though I do not agree with all she did.

Tom Courtney

Kirk said...


No, not even a district-court judge.

She would, however, have made fine legislator. Hmm, well whadda ya know...