Bad Heir DayHow Sandra Day O'Connor became the least powerful jurist in America.
By Dahlia LithwickPosted Monday, July 9, 2007, at 7:21 PM ET
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.
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?
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.
Bad Heir Day:How Sandra Day O'Connor became the least powerful jurist in America.
Dahlia Lithwick is a Slate senior editor.
Photograph of Sandra Day O'Connor by Mandel Ngan/AFP/Getty Images.
COMMENTS
Remarks from the Fray:
There's no great mystery about the fact that O'Connor wasn't a rigorous thinker. In fact, her reasoning was often downright laughable. Even when I supported the outcome of a particular case, I could bet, if O'Connor provided a concurring opinion, or wrote for the majority, that the reasoning she used to arrive at her vote would be unconvincing.
That's part of why her legacy is falling apart almost instantly: she influenced the court solely by the power of her vote, rather than by the quality of her reasoning. Smarter judges leave behind arguments that are so convincing that future justices are compelled to come to grips with their ideas. O'Connor's influence evaporated the moment she retired and lost her vote.
It's not just that other swing voters happened to be followed by people predisposed to take up their baton, as Ms. Lithwick suggests. The reason successors take up the baton of a piece of legal reasoning is that it has enough intellectual merit to be an attractive way of thinking about a problem. When Sandra Day O'Connor dropped her baton at the end of her leg of the relay, it was simply too embarrassing a prop for anyone to bother taking it up. I suppose there's some truth to the fact that a swing-voter's legacy is more in danger in a time of partisanship and sweeping political philosophies on the court. But O'Connor's years of being the court half-wit sure didn't help matters for her.
Personally, I take a little bit of sadistic glee in what's happening, even if I think the Roberts court's cases are a change for the worse. My glee comes from the fact that O'Connor is still alive, and is being forced to watch her life's work being reduced to an obscure footnote in history, right before her eyes. This strikes me as completely appropriate, since her own absurdly indefensible position in the Bush v. Gore case is what doomed her legacy to an early death. If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts. O'Connor has to watch her legacy destroyed precisely because of one of her patented pieces of legal idiocy -- what could be more fitting?
A hundred years from now the disgraced Ms. O'Connor will be remembered as one of the five co-conspirators in the Supreme Court's coup d'etat..... and very little else. Sure, she'll always have the fact she was the first female justice, but that will put her in league with people like Sally Ride -- remembered strictly for their double X chromosomes, rather than any enduring contributions to their field of endeavor.
I think Lithwick has this pretty much right. In the Supreme Court, the narrowest opinion that reaches the same result as the majority is the controlling opinion of the Court. That makes the last Justice to join a 5-4 majority enormously influential, but only to the extent that that Justice either (i) writes a narrower opinion than the four Justice plurality he or she joins, or (ii) can persuade, by force of argument or political maneuvering, the four justice plurality to move its opinion fractionally closer to the 5th Justice's views.
Real, long-term power goes not just to any 5th Justice but to the 5th Justice who can move a plurality in a particular direction. A narrow, one Justice controlling opinion, is sufficient to decide a case, but it is a concession that an overwhelming eight Justices out of nine disagreed. If a Justice consistently loses intellectual arguments by a vote of 8-1, even while she wins a case, that Justice can hardly be very surprised that her views were ultimately disfavored when considered alongside cases that expressed much more convincingly, at least by vote counts, a particular set of ideas.
Justice Kennedy ought to be mindful of this risk of having his views marginalized, in the long term, even if he enjoys influence disproportionate to his single vote in the short term.
Though I'm somewhat troubled by the court's rightward shift, I don't know if you could call O'Connor pragmatic.
Because O'Connor lacked any real constitutional theory to support her decisions, they often were so vague and ambiguous that no lower court or lawyer could know how to interpret them in later cases. The result? Endless expensive litigation interpreting the finer points of O'Connor's "small humble" jurisprudence.
Making decisions that keep lawyers employed for decades is hardly pragmatic.
It should come as no surprise to anybody that a Justice whose body of work was based on personal preference rather than philosophical and ideological rigor would have no legacy to speak of. How can her jurisprudence survive when it's entirely based on her whim? There are no standards to build on, no cohesion. What is there to follow? This should be the greatest lesson to future Justices: You can choose to either be the most powerful judge right now, or a judge that compels long-term change. And if you want the latter, treat the law as more than just a series of cases.
Is there any doubt that Justices Scalia, Thomas, and Stevens will have their opinions (even dissents) analyzed for decades to come? Chief Justice Rehnquist realized that the law has a long life, and crafted his dissents so that they may someday become majorities. O'Connor's opinions are all majorities that will soon become mere antiques, distinguishable on the facts if necessary, or discarded outright. Why lament this?
The Ladder How a Supreme Court case about promotions at a local fire department will decide who gets the good jobs in cities across America. Nicole Allan | June 25, 2009
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. 
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Remarks from the Fray:
There's no great mystery about the fact that O'Connor wasn't a rigorous thinker. In fact, her reasoning was often downright laughable. Even when I supported the outcome of a particular case, I could bet, if O'Connor provided a concurring opinion, or wrote for the majority, that the reasoning she used to arrive at her vote would be unconvincing.
That's part of why her legacy is falling apart almost instantly: she influenced the court solely by the power of her vote, rather than by the quality of her reasoning. Smarter judges leave behind arguments that are so convincing that future justices are compelled to come to grips with their ideas. O'Connor's influence evaporated the moment she retired and lost her vote.
It's not just that other swing voters happened to be followed by people predisposed to take up their baton, as Ms. Lithwick suggests. The reason successors take up the baton of a piece of legal reasoning is that it has enough intellectual merit to be an attractive way of thinking about a problem. When Sandra Day O'Connor dropped her baton at the end of her leg of the relay, it was simply too embarrassing a prop for anyone to bother taking it up. I suppose there's some truth to the fact that a swing-voter's legacy is more in danger in a time of partisanship and sweeping political philosophies on the court. But O'Connor's years of being the court half-wit sure didn't help matters for her.
Personally, I take a little bit of sadistic glee in what's happening, even if I think the Roberts court's cases are a change for the worse. My glee comes from the fact that O'Connor is still alive, and is being forced to watch her life's work being reduced to an obscure footnote in history, right before her eyes. This strikes me as completely appropriate, since her own absurdly indefensible position in the Bush v. Gore case is what doomed her legacy to an early death. If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts. O'Connor has to watch her legacy destroyed precisely because of one of her patented pieces of legal idiocy -- what could be more fitting?
A hundred years from now the disgraced Ms. O'Connor will be remembered as one of the five co-conspirators in the Supreme Court's coup d'etat..... and very little else. Sure, she'll always have the fact she was the first female justice, but that will put her in league with people like Sally Ride -- remembered strictly for their double X chromosomes, rather than any enduring contributions to their field of endeavor.
--Arkady
(To reply, click here.)
I think Lithwick has this pretty much right. In the Supreme Court, the narrowest opinion that reaches the same result as the majority is the controlling opinion of the Court. That makes the last Justice to join a 5-4 majority enormously influential, but only to the extent that that Justice either (i) writes a narrower opinion than the four Justice plurality he or she joins, or (ii) can persuade, by force of argument or political maneuvering, the four justice plurality to move its opinion fractionally closer to the 5th Justice's views.
Real, long-term power goes not just to any 5th Justice but to the 5th Justice who can move a plurality in a particular direction. A narrow, one Justice controlling opinion, is sufficient to decide a case, but it is a concession that an overwhelming eight Justices out of nine disagreed. If a Justice consistently loses intellectual arguments by a vote of 8-1, even while she wins a case, that Justice can hardly be very surprised that her views were ultimately disfavored when considered alongside cases that expressed much more convincingly, at least by vote counts, a particular set of ideas.
Justice Kennedy ought to be mindful of this risk of having his views marginalized, in the long term, even if he enjoys influence disproportionate to his single vote in the short term.
--CullenS
(To reply, click here.)
Though I'm somewhat troubled by the court's rightward shift, I don't know if you could call O'Connor pragmatic.
Because O'Connor lacked any real constitutional theory to support her decisions, they often were so vague and ambiguous that no lower court or lawyer could know how to interpret them in later cases. The result? Endless expensive litigation interpreting the finer points of O'Connor's "small humble" jurisprudence.
Making decisions that keep lawyers employed for decades is hardly pragmatic.
--zbird
(To reply, click here.)
It should come as no surprise to anybody that a Justice whose body of work was based on personal preference rather than philosophical and ideological rigor would have no legacy to speak of. How can her jurisprudence survive when it's entirely based on her whim? There are no standards to build on, no cohesion. What is there to follow? This should be the greatest lesson to future Justices: You can choose to either be the most powerful judge right now, or a judge that compels long-term change. And if you want the latter, treat the law as more than just a series of cases.
Is there any doubt that Justices Scalia, Thomas, and Stevens will have their opinions (even dissents) analyzed for decades to come? Chief Justice Rehnquist realized that the law has a long life, and crafted his dissents so that they may someday become majorities. O'Connor's opinions are all majorities that will soon become mere antiques, distinguishable on the facts if necessary, or discarded outright. Why lament this?
--Sycamancy
(To reply, click here.)
(7/10)