The Electric Commentary

Wednesday, July 06, 2005


I'm glad that my friend Brian joined the Blogosphere because people used to occasionally accuse me of being a conservative, and now, if that ever happens again, I can just send them over to Brian's blog and they can read the writings of an actual conservative.

Sandra Day O'Connor was not a friend of the religious right for obvious reasons, but Brian (and conservatives in general, including Justice Scalia) go too far in calling her stupid.

I think that the liberal and conservative paradigm for explaining behavior with which they disagree is to impugn their motivations. You hear "evil" and "stupid" and my favorite, "partisan." O'Connor was a wishy-washy judge, that much is true, but in this regard she wasn't any worse than seven of the other eight Justices on the court. Most people (and most Supreme Court Justices) are fairly predictable. If you give them power, they will exercise that power. Eight of the nine Justices are simply adhering to human nature. They act in ways that reflect their political preferences because they can. Four of the justices I would classify as staunch liberals (with Breyer as the most moderate), and their votes reflect their liberal leanings. Two I would classify as moderate conservatives (Kennedy and O'Connor) and they go back and forth. Scalia and Rehnquist are staunch conservatives, and tend to vote as you would expect. Only Thomas, also a staunch conservative, has a principled approach to Constitutional interpretation.

The big difference with O'Connor is that she wielded (and was willing to wield) a disproportionate amount of power due to her moderate nature, and due to the fact that she was often the deciding vote. This article by William Stuntz (who clerked for Justice Powell) says it pretty well:

One more similarity is worth noting, and it's one that should give pause in the midst of all the praise. If Powell and O'Connor had a single defining characteristic as judges, it was this: Both were very comfortable--too much so--exercising power.

I don't think they started out that way. I clerked for Powell his next-to-last year on the Court, and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. I don't know Justice O'Connor, so I can't swear that she felt in 1981 the way Powell felt in 1972. But I bet she did. As with Powell, you can see it in her opinions in the early 1980s: the tentativeness, the discomfort with hurling judicial thunderbolts.

But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it. O'Connor's has been the decisive voice on all those subjects, plus federalism and much of the law of criminal procedure. In Bush v. Gore, she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century. For all the talk about O'Connor's lawyerly virtues--people said the same thing about Powell--Bush v. Gore shows that (as my Harvard Law School colleague Heather Gerken likes to say) she is more politician than lawyer.

Most people, when placed in O'Connor's position, would act in a similar fashion. That does not make them stupid, on the contrary, it makes them normal. The temptation to exercise power on the Court has only increased in the last twenty years. With every decision that is made because of political concerns instead of Constitutional considerations it becomes increasingly attractive for those that remain principled to give in and "fight back." I believe that partisan bickering finally led Justice Scalia to give up on his originalist/textualist ways (unless it is convenient) to join the policy fight.

I would offer a suggestion for a replacement for O'Connor, but no one that I would recommend has a realistic chance. In all likelihood we will end up with another politician who views the Court as the third, and most powerful, branch of the legislature.

Which leads us to Roe. The abortion debate garners strong feelings on each side (not much logic, but strong feelings). The single worst thing that Roe did was to take an extremely contentious issue, and to lock it in as an exclusively judicial issue. When that happened the court ceased to be a principled, independent body, and joined the realm of "politics-as-usual." From that point on the executive branch no longer appointed judges, they appointed abortion policy representatives. Every time we have a confirmation hearing, some Senator always asks, "Would you uphold a woman's right to chose." That is an improper question and everyone knows it, yet someone always asks. That question has no bearing on someone's competence to be a judge, and until Senators stop asking the question, the Supreme Court will continue on as a twisted mutation of what it is supposed to be.

The independent judiciary is all but dead.


  • Great post. Whenever I hear someone start to talk about how horrible and corrupt the government is, I like to say that any collection of people will be corrupt when given that much power. Take almost any nine people, and they would make similar choices.

    And Roe vs. Wade was a mistake. The issue should have been decided through other means. Making it a Constitutional right simply poisoned the democratic process of slowly coming to the correct compromise position. I'm not advocating either side here. I'm simply advocating the right of the public to slowly mature and decide this issue for themselves, but Roe made that a little-heard opinion.

    By Blogger Mike, at 12:26 PM  

  • Thanks Mike, I appreciate it.

    By Blogger PaulNoonan, at 1:13 PM  

  • Wow, is your friend conservative.

    By Blogger PRB, at 2:27 PM  

  • He most certainly is.

    By Blogger PaulNoonan, at 2:35 PM  

  • He's the bad kind of "conservative." He scares me a bit.

    By Blogger DannyNoonan, at 2:38 PM  

  • My opinion is exactly the opposite of yours. I think O'Connor was terrified of the power of the Supreme Court and the possible perversion of it into a policy making body. That is why she made sure she correctly acted as a judge should, each case as an individual case, limiting it's power as much as possible.

    Hearing some of the quotes from R v W I think she felt she had no choice but to make that decision.

    This is a consistent approach if I ever saw one.

    By Anonymous The Consigliere, at 5:41 AM  

  • That point makes no sense. She did not limit government power very much, and certainly not as a judicial philosophy. YOur exercise of power on the bench is easily determined by how frequently your decisions match up with your personal beliefs. With O'Connor, her decisions nearly always matched up with her personal beliefs. This indicates that she was using her power to do what she thought policy should be. That is not the job of a Supreme Court Justice. But as I said, this makes her no different than anyone sans Thomas.

    By Blogger PaulNoonan, at 8:08 AM  

  • YOur exercise of power on the bench is easily determined by how frequently your decisions match up with your personal beliefs.

    Decisions almost always match up with beliefs don't they? If O'Connor believes that the law and the constitution leads to decision A, why would she ever make ruling B? Are you suggesting that she went against the law at some point?

    By Anonymous The Consigliere, at 5:49 PM  

  • Yes, frequently. Your decisions on the Supreme Court are supposed to be based on what the Constitution says (or Federal Law if that is what the case calls for). Her decisions, more than most, reflect what she thinks the law should be without regard to the Constitution. If that is what she wanted to do, she should have run for congress.

    By Blogger PaulNoonan, at 7:51 AM  

  • "Her decisions, more than most, reflect what she thinks the law should be without regard to the Constitution."

    That is of course a fairly serious accusation. Can you give me the list of decisions where you think she veered from the constitution so I can take a look at them and see if I agree with your assessment?

    By Blogger The Consigliere, at 8:29 PM  

  • Sigh.

    It would be a more serious accusation if it wasn't so ubiquitous. But if I must:

    McConnell v. FEC, 124 S.Ct. 619 (2003)
    This was the ruling that upheld the constitutionality of most of the McCain-Feingold campaign finance bill regulating "soft money" contributions.

    Grutter v. Bollinger, 539 U.S. ___ (2003) is a case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The 5-4 decision was announced on June 23, 2003.

    Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged. The Court's lead plurality opinion upheld the right to have an abortion but lowered the standard for analyzing restrictions of that right, invalidating one regulation but upholding the others.
    This case is a mess, and her portion is the messiest.

    Bush v. Gore, 531 U.S. 98 (2000), was a controversial U.S. Supreme Court case heard on December 11, 2000. The decision directly impacted the result of the 2000 presidential election because it stopped the statewide recount that was occurring in Florida and allowed Florida to certify George W. Bush the winner for the State of Florida. With Florida's 25 electoral votes, Bush had enough electoral votes to win the Presidency.

    By Blogger PaulNoonan, at 9:17 PM  

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