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Justice Sandra Day O'Connor

the breakfast table
entries
123
from: Dahlia Lithwick
to: Emily Bazelon and Oona A. Hathaway

The Closet Thing to Fair

Posted Friday, July 1, 2005, at 6:24 PM ET

Who Are These People?

Dear Oona and Emily,

One of the most interesting things I've been hearing from pundits all day is some variation on the theme of "I wish I could express to you how truly earth-shattering this news is. … " One of the odd disconnects between compulsive court-watchers and normal people is that the public genuinely believe the math—that O'Connor simply represents one vote, to be replaced by one other vote, meaning that this retirement is no more consequential than any other.

That's not the case, and how it got to be that way is one of the most interesting parts of the O'Connor story.

As you suggested, Emily, it can look like a tale of brazen self-aggrandizement to some people—O'Connor cunningly staking out positions in the center; craftily authoring concurrences so narrow that they invariably became the holding in a case. But I absolutely agree that her so-called grandeur or hubris is only half the story. The other half is a striking form of judicial humility. O'Connor writes narrowly because she doesn't want to reshape the whole legal world with the stroke of a pen (though this is naive at times—since her affirmative-action, religion, and gerrymandering decisions do just that, intent or no). Her impossibly narrow opinions may not represent her own pathology so much as the pathology of other court members—who seek to raze whole legal landscapes with a single opinion. She wants legislatures to do that. She wants state supreme courts to do that. She wants the president to do that. In her view the court has virtually limitless power to tell the other branches when they're being stupid. But she'd prefer that they not be stupid in the first place.

O'Connor does have a very lofty view of the court as an institution, as well as the importance of public legitimacy. We know that from her words in Planned Parenthood v. Casey, the decision upholding the core of Roe v. Wade. But I don't believe she has nearly as lofty a view of her own role on it. Criticizing her alleged self-importance without recognizing that corresponding humility is a mistake.

Emily, you ask at the end of your post whether it was a matter of character or history that O'Connor ended up at the epicenter of this sharply polarized court. My sense is that it's a bit of both. Certainly much is made of the fact that she is the only one of this bunch to have served in all three branches of government and the only one to have been elected. She is a born compromiser, deal-doer, horse-trader, and that means she will invariably clash with the ideological purists. But those who condemn her as an unprincipled, weather vane of a swing voter have short memories. One of O'Connor's great heroes, Justice Lewis Powell, was feted—at least after his retirement—as a great "balancer," "moderator," and "uniter."

Maybe swing voters make us nervous for the same reasons you claim to be so fond of O'Connor, Emily: They frighten but also gladden us, just about equally. In a precariously 4-4 universe, that seems about the closest thing to fair. And I think the days of that sort of fair are now behind us.

Oona, your insights about the intrinsic tension in O'Connor—the softness against the sharpness, the compassion for her expansive court family against the seeming lack of compassion in some cases—highlights a point that shouldn't be lost in all the hoopla of the coming weeks: O'Connor's single greatest feature as a justice is her complexity. Just when you think you can predict what she'll do, she surprises you yet again.

At the risk of waxing personal for a moment, I offer one thought about what O'Connor means to me: Perhaps it's because I write this while officially out on maternity leave—rocking my infant son in his bouncy chair under my desk as I type—but to me, O'Connor truly models the feminist dream. She managed to "have it all" simply by being braver than everyone else—trusting that she could drop out of the workforce to raise three boys and come back to a good job—and by showing a kind of relentless focus that most women of our generation have not yet mastered. It seems to me that when she was a mother, she was fully a mother; when she was a politician, she was fully a politician; and when she was a jurist, she was fully a jurist. And now she's most likely keeping her promise to spend more time with her family. Good for her. She has earned it.

Dahlia

the breakfast table
entries
123
from: Dahlia Lithwick
to: Emily Bazelon and Oona A. Hathaway

The Closet Thing to Fair

Posted Friday, July 1, 2005, at 6:24 PM ET
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Emily Bazelon is a Slate senior editor. Oona A. Hathaway is an associate professor of law at Yale Law School and a former law clerk to Justice Sandra Day O'Connor. Dahlia Lithwick is a Slate senior editor.
Photograph of Sandra Day O'Connor by Win McNamee/Getty Images.
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