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Friday, July 01, 2005

Justice O'Connor and the Pragmatist Movement

We at Ex Post have, at times, not been kind to Sandra Day O'Connor. Her jurisprudence, although often if not mostly coming to what many of us think is the "right" conclusion, worked to aggrandize the role of the Court in a way that will be perhaps most clear in the weeks and months to come as political opposites fight to the death over who the next philosopher king will be. What has become known as "judicial pragmatism," a softening of the mandates of the text and history of the Constitution when faced with seemingly unreasonable outcomes, has corrupted the neutrality of the law and brought the country's confidence in the Supreme Court to an all time low.

Justice O'Connor's role in this revolution has, perhaps, been even more sublime than one might think. Pragmatism has worked some ridiculous results such as relying on treaties the U.S. expressly refused to sign, making up constitutional doctrines, and throwing out direct precedent. But the O'C is not associated with any of these deeds.

Instead, her version of pragmatism has been more in the vein of Judge Posner, although without the economics. The two of them produce opinions the result of which people generally find sensible--most people probably agree with her most of the time. What this has to do with interpreting a Constitution is still a mystery to me, but at least she's not out of touch with reality as the "hopeless four" seem to be.

What this may or may not have done is garnered considerable moderate and conservative support for the idea of pragmatism because the outcomes are often or mostly sensible. She is a figurehead for the politically conservative/jurisprudentially liberal demographic--a group whose focus is the views of the judge and the virtue of the outcome rather than reliance on structure and text. This group is playing with fire with names like Gonzalez and McConnell who both have some appealing views but are not necessarily committed to the text and history of the Constitution.

I hope that this influence has not been successful enough for those who have less trust in the structure of the Constitution than they have in 9 lawyers to support a new Justice whose supposed political views or party affiliation they share. I suspect that the Souters and Kennedys have made it clear enough that this is a bad idea.


Blogger David Schraub said...

McConnell isn't "committed to the text and history of the constitution"? I'm honestly confused where you get to that conclusion from. Anybody who is willing to stick to his originalist/textualist guns and say DC School desegregation was not required under the 5th amendment should get a bit more respect for his textualist chops (a look at his C.V. should do the same). I'm not an originalist myself (I'm more of a Ely disciple myself), but I sincerely respect McConnell as a brilliant scholar, a man who has forced me to re-evaluate many of my own beliefs, and someone who believes in principles, not politics.

10:10 PM  

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