Dear Dahlia and Oona,
What will we miss about Justice Sandra Day O'Connor? She will always be the first woman appointed to the Supreme Court. And if you're a liberal you'll miss the ballast she provided to the court's conservative wing, especially because it's so likely that the nominee with whom President Bush chooses to replace her won't play that role. But what will we miss about O'Connor's approach to deciding cases—about her jurisprudence?
O'Connor is the quintessential one-ruling-at-a-time justice. Certainly on the current court she was the one most inclined to closely parse the facts of a case and then craft a decision that deliberately shies away from announcing a general rule. Among Supreme Court watchers and litigants, that has led to a lot of eye-rolling and hair-tearing. It has gotten O'Connor mocked as a self-aggrandizer (as George Washington University law professor Jeffrey Rosen called her today on Day to Day) who lacked a judicial philosophy and reveled in being the one to decide the most contested questions facing the country. "Does she at some deep level doubt her own ability?" asked David Garrow, who teaches at Emory Law School, in an O'Connor profile Rosen wrote for the New York Times Magazine in 2002. "If she doesn't lack the courage of her convictions, she lacks the clarity of her convictions."
Pooh. O'Connor had perfectly clear convictions and expressed them clearly. And her philosophy of judging was at least as developed as that of most of her colleagues. It just wasn't a philosophy that suited most people with strongly liberal or conservative views—or most legal scholars. O'Connor didn't believe in putting the court's awesome authority behind hard-and-fast rules that would tie up a hugely complicated, divisive issue for generations. Sharply drawn rules are great if you're trying to give lower courts marching orders, and, to be sure, O'Connor erred too far in the direction of minimalism in some areas of law. (Her voting-rights decisions turn on factual differences so slight as to seem nearly arbitrary.) But the virtue of her one-at-a-time approach was that it left open issues that are better worked through on the floor of state legislatures and Congress, and in all of our kitchens and living rooms.
In affirmative-action cases, for example, O'Connor didn't hand down a ruling from on high proclaiming the practice generally legal or illegal. She struck down some programs and upheld others, telling us what she was thinking each time so we could follow along and decide for ourselves whether we agreed or disagreed and why. And you know what? In the quarter-century since questions about the fairness of racial preferences have bedeviled the country, I think we're better off for having continued to debate them. Two years ago, O'Connor was berated for coming down in favor of an affirmative-action program at the law school at the University of Michigan and against another one used by the university's undergraduate admissions office. In the law-school case, O'Connor gave a thumbs-up because admissions officers were looking at each application and weighing a candidate's race along with whether she had a glowing recommendation from a professor or worked her way through college or lived in the sticks. But the undergraduate admissions office was more or less using quotas—giving students of color extra points for race as a way of quickly admitting them. O'Connor's approach endorsed the notion that the goal of student-body diversity is a constitutionally worthy one. She contributed this nice rhetoric: "Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." She also said, however, that she expected that in 25 years affirmative action would have run its course. Maybe that prediction will prove too optimistic—maybe too many African-American and Hispanic students will still be grinding it out in poor neighborhoods and lousy schools. But aren't we well served by a Supreme Court ruling that prods us to think about a time when we can move beyond racial preferences?
O'Connor's approach to the separation of church and state has similar attributes. In Lynch v. Donnelly, her 1984 decision upholding a Christmas display in Pawtucket, R.I., she said that for her the key indicator of whether a state has gone too far in endorsing a particular religion is whether it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." You can ridicule this for helping to prop up the discredited Lemon test, as Dahlia did earlier this week. But isn't it a pretty good stab at a today's-world embodiment of the basic values expressed by the Establishment Clause ("Congress shall make no law respecting an establishment of religion")? Doesn't O'Connor's approach suit the country better than a rule that calls either for taking down or leaving up every single Christmas display or Ten Commandments monument on public grounds?
The weakness in O'Connor's jurisprudence is how her rulings hold up when they're widely applied, as Supreme Court decisions must be. It's lovely to assess individual college applications in theory, but it's expensive in practice. The idea that the state shouldn't try to make nonbelievers feel like outsiders seems like a good standard, except that if you're looking at a Christmas display, how do you know whether the state's reason for putting it up was to honor the birth of Jesus or the public holiday season?
But if it's easier to skewer O'Connor decisions for Scotch-tape logic and poor guidance than those of relative purists like Antonin Scalia or John Paul Stevens, it's also often easier for the country as a whole to swallow them. I'm going to miss Sandra Day O'Connor because I almost always breathed a sigh of relief when I heard she was the author of a majority opinion in a deeply contested case. She didn't thrill me, but she also didn't scare me.
One more thing: Was O'Connor taking power for herself by maintaining her role as the swing vote, the woman deciding the course of American life on crucial social issues? Or was she just preserving judicial discretion, for whichever justices happen to occupy the court's center at a given moment in time or area of the law?
Looking forward to your thoughts,