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)
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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)