O’Connor’s wake

With Justice Sandra Day O’Connor having announced her retirement, and Chief Justice William Rehnquist rumored to be soon to follow, talk of legacies has been rampant. Some have argued that O’Connor, widely considered to be “the most powerful woman in America,” has practically eclipsed the Chief Justice in her influence over the law. How long will her shadow reach in the years after she leaves the bench?

To be sure, Justice O’Connor has been a powerful justice while on the Court, casting the most deciding votes in 5-4 decisions and often writing the controlling opinion, whether as a concurrence or the Court’s ruling. Hers was the viewpoint that carried the day in some of the most contentious issues before the Court, such as abortion rights, affirmative action, and the Establishment Clause.

Yet when one considers these opinions as a whole, it is impossible to derive a jurisprudential theme between them. At best, she was what law professor Cass Sunstein would call a “judicial minimalist,” meaning someone who aimed to create narrow opinions that preserved the status quo or made only incremental changes, rather than make sweeping, ideological opinions.

One can see this most strongly in her dissent in Blakely v. Washington, where the Court majority invalidated a state sentencing code that was identical to the federal government’s. Justice O’Connor strongly opposed rocking a boat that she saw as perfectly seaworthy. Why throw hundreds of courts into disarray by throwing out extensive sentencing guidelines that have been in use for decades?

The majority in Blakely was more concerned with the Sixth Amendment’s right to a jury trial, and was rightfully concerned about how that right was infringed when a court could sentence someone to extra jail time for facts never adjudicated by a jury. If the end result upset the apple cart, it was worth it to protect the right. The split in Blakely, in other words, was between a process-oriented majority and O’Connor’s results-oriented approach.

O’Connor’s “minimalism” makes sense in light of her background: she was primarily a politician–eventually becoming president of the Arizona state Senate before her brief tenure in the state’s courts. Her aptitude was for consensus-building, not jurisprudence. Saddled between four liberal justices and four conservatives, she was in the right place at the right time to exert a compromising approach with an eye to the bigger picture.

In some ways, this has made her akin to the Chief Justice. Rehnquist was never a judge before being named to the Court, and despite his generally conservative views on the law he has been quick to exert a politician’s touch to his rulings.

Perhaps this is most apparent in his majority opinion in Nevada Department of Human Resources v. Hibbs, where he abruptly changed course from previous opinions to uphold the Federal Medical Leave Act against the states. It is widely speculated that, upon finding himself in the minority (due to O’Connor jumping ship), Rehnquist switched sides so that he could write the majority opinion himself and save as much of his prior rulings as possible.

But while this may also be a results-oriented view to the law, Rehnquist always had his eye on where he wanted the law to go. His goal was always to turn his earlier dissents into majorities. It was his stewardship that made the revitalization of federalism possible, as well as a decision like Zelman v. Simmons-Harris, in which public funding of voucher programs was upheld as constitutional even though some of the money would go to fund religious schools. Zelman was essentially a vindication of Rehnquist’s dissent almost 30 years earlier in Committee for Public Education & Religious Liberty v. Nyquist.

Put side-by-side, while Justice O’Connor may have left her stamp on more recent majority opinions, the Chief Justice has presided over larger movements in the law. The difference is that O’Connor’s approach to the law simply cannot be duplicated, while a future justice could certainly embrace the theories of federalism that Rehnquist fostered. O’Connor was a pragmatist without a theory. As a result, her consensus opinions tend to teeter uneasily, never quite satisfactorily settling the matter at hand.

While getting an O’Connor clone to replace her is impossible, it won’t be for lack of trying. In today’s political environment, it seems that espousing a consistent judicial philosophy is anathema to a successful appointment to the Court. This makes it more likely that we’ll get another politician-judge like O’Connor rather than a Justice Scalia or Thomas. My guess is that at least one of the upcoming appointments by President Bush will come from the ranks of the Senate, simply because senators are more likely to confirm one of their own.

Lending more weight to that were Senator Minority Leader Harry Reid’s (D-Nev.) comment last week that, in a lunch with Justices O’Connor, Scalia and Breyer, the justices indicated that what “they would like to see is the president pick someone who has not been a judge. And what I have said to anyone who will listen is what I think he should do is pick one of the senators.”

But is that good for the Court or the nation? I am more inclined to agree with The Los Angeles Times when it editorialized, “A judge should have a coherent judicial philosophy and follow it even to a conclusion he or she would not prefer.” The law is more predictable when it is based on an underlying ideology rather than pure pragmatism. Justice O’Connor may have derided the idea of a “grand unifying theory” of law, but the absence of theory makes the law a slave to individual whim.

As an individual justice, O’Connor was doubtlessly a giant on the Court. But her minimalism is not likely to endure. In contrast to the Chief Justice, her legacy will end as soon as she leaves the bench. Even if Bush appoints another pure pragmatist, O’Connor was one-of-a-kind, leaving loose ends in her wake.

James N. Markels is an attorney and a regular columnist for Brainwash.