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.

Sandra Day O'Connor. Click image to expand.
Sandra Day O'Connor

During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded. With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

What can we conclude about the court's swing voters, about O'Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?

Advertisement

So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O'Connor's theoretical framework for abortion, campaign finance, and affirmative action. That's to name just a few. My friend Marty Lederman predicted as much when O'Connor first retired two years ago; still, the speed of it all is proving to be unsettling, if not downright unseemly.

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. I tested this theory this morning on John Jeffries, dean of the University of Virginia law school, a former clerk for famed swing justice Lewis Powell and, later, Powell's biographer. Jeffries resists the "swing voter" label for either Powell or O'Connor, with its implication that they swung from one ideological pole to the other. He acknowledges that both were at the center of a closely divided court—but in his view, Powell's work at the high court, perhaps unlike O'Connor's, has endured.

Case in point? Jeffries offers Powell's quirky solo concurrence in the 1978 affirmative action decision Regents of the University of California v. Bakke. Powell seemed merely weird when he floated the principle that a university's interest in producing student-body "diversity" could be a compelling state interest to justify the use of racial preferences in college admissions. Today, his view is the law and a notion many Americans have come to accept as valid. And while the Roberts Court may yet kill it off, O'Connor and a majority of the court kept Powell alive for decades.

As one begins to consider whether O'Connor might be left with no similarly enduring achievements, it's worth pointing out that some part of this may well be of her own doing: Even at the height of her influence at the high court, O'Connor's critics tended to deride her constitutional stylings as closer to Muzak than Mozart. Justice Antonin Scalia once famously wrote that her argument in an abortion case "cannot be taken seriously." And her many critics often pointed to the lack of real rigor in her "undue burden" test for abortion restrictions; her "reasonable observer" test for whether the government has "endorsed" religion; or her "someday my prince will come" test for when affirmative action programs might become unnecessary in the future.

That's why 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.

All of which leads me to my own hypothesis about the legacy of swing voters: Their long-term influence on the high court may simply require the presence of yet another swing voter to be sustained. Powell's vision in Bakke survived Powell's retirement from the high court only because O'Connor was there to grab his baton in the 2003 University of Michigan cases. In her book The Majesty of the Law, O'Connor noted that Powell "was concerned in every case about the equity at the bottom line—about reaching a fair and just result." In her view, he was the quintessential common-law judge, and that was the tradition O'Connor most admired and the role she went on to embrace for herself. But now, there's no one to be their heir. Which means it's not just O'Connor's legacy that is rapidly disappearing.

TODAY IN SLATE

Sports Nut

Grandmaster Clash

One of the most amazing feats in chess history just happened, and no one noticed.

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

Do the Celebrities Whose Nude Photos Were Stolen Have a Case Against Apple?

The NFL Explains How It Sees “the Role of the Female”

Future Tense

Amazon Is Now a Gadget Company

Food

How to Order Chinese Food

First, stop thinking of it as “Chinese food.”

Scotland Is Inspiring Secessionists Across America

The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant

The XX Factor
Sept. 18 2014 11:40 AM The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant
Moneybox
Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Weigel
Sept. 18 2014 3:19 PM In Defense of Congress Leaving Town Without a New War Vote
  Business
Business Insider
Sept. 18 2014 3:31 PM What Europe Would Look Like If All the Separatist Movements Got Their Way
  Life
Outward
Sept. 18 2014 3:24 PM Symantec Removes Its “Sexual Orientation” Filter
  Double X
The XX Factor
Sept. 18 2014 3:30 PM How Crisis Pregnancy Centers Trick Women
  Slate Plus
Behind the Scenes
Sept. 18 2014 1:23 PM “It’s Not Every Day That You Can Beat the World Champion” An exclusive interview with chess grandmaster Fabiano Caruana.
  Arts
Brow Beat
Sept. 18 2014 3:04 PM Pogo Returns With Another Utterly Catchy Disney Remix
  Technology
Future Tense
Sept. 18 2014 2:39 PM Here's How to Keep Apple From Sharing Your iPhone Data With the Police
  Health & Science
Bad Astronomy
Sept. 18 2014 7:30 AM Red and Green Ghosts Haunt the Stormy Night
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.