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

The law, lawyers, and the court.
July 9 2007 7:21 PM

Bad Heir Day

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

(Continued from Page 1)

And what about Justice Anthony Kennedy? In theory, he's the new fifth vote on a sharply divided court—he made the difference in every one of the 24 cases this term that split the justices 5-4. Why wouldn't he keep O'Connor's work alive?

Kennedy does not easily fit the shoes of a Powell or an O'Connor. His jurisprudential approach couldn't be more different from the real-world compromises that pulled them to the middle of the court. In fact, Kennedy often appears to be interested mostly in occupying that center spot for its own sake. He sometimes seems to be using that pivotal fifth vote as a placeholder for more of his hypothetical pivotal fifth votes in the future. O'Connor may well have similarly relished her enormous power at the court's center. But no one could dispute that she ultimately used it to decide the actual cases before her.


Kennedy's outsize influence is certainly being felt this term. But if his all-important swing votes—including his decisive, if wholly inscrutable, opinion in the two affirmative action cases from the end of the term—are any indication, his enormous influence may well prove no more enduring than O'Connor's, albeit for different reasons. Kennedy's well-meaning efforts to split the difference between two teams of frustrated constitutional purists may soon look as sweet and old-fashioned as Powell's and O'Connor's creeping, common-law tradition. In this new era of sweeping political agendas and dramatic, wrenching shifts in the law, there may just be no time or space anymore for small, humble acts of pragmatism.


The World

The Budget Disaster that Sabotaged the WHO’s Response to Ebola

How Movies Like Contagion and Outbreak Distort Our Response to Real Epidemics

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

Everything You Should Know About Today’s Eclipse

An Unscientific Ranking of Really, Really Old German Beers


Welcome to 13th Grade!

Some high schools are offering a fifth year. That’s a great idea.


The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

Want Kids to Delay Sex? Let Planned Parenthood Teach Them Sex Ed.

Can Democratic Sen. Mary Landrieu Pull Off One More Louisiana Miracle?

  News & Politics
Oct. 22 2014 9:42 PM Landslide Landrieu Can the Louisiana Democrat use the powers of incumbency to save herself one more time?
Oct. 23 2014 11:51 AM It Seems No One Is Rich or Happy: I Looked
The Vault
Oct. 23 2014 12:02 PM Delightfully Awkward Studio Action Shots of Players, Used on Early Baseball Cards
  Double X
The XX Factor
Oct. 23 2014 11:33 AM Watch Little Princesses Curse for the Feminist Cause
  Slate Plus
Oct. 23 2014 11:28 AM Slate’s Working Podcast: Episode 2 Transcript Read what David Plotz asked Dr. Meri Kolbrener about her workday.
Brow Beat
Oct. 23 2014 12:01 PM Who Is Constantine, and Should You Watch His New Show?
Oct. 23 2014 11:45 AM The United States of Reddit  How social media is redrawing our borders. 
  Health & Science
Bad Astronomy
Oct. 23 2014 7:30 AM Our Solar System and Galaxy … Seen by an Astronaut
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.