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Friday, July 01, 2005

More than one case at a time now?

I come neither to praise nor to bury Sandra Day O'Connor. She obviously had a remarkable and influential career in the law, including a highly influential period of time on the highest court in the land.

I'm not an expert on her jurisprudence, but I will say that her critics from the right were probably too harsh on her, and her admirers among self-styled "progressives" were probably too kind to her. In the area of state sovereign immunity, federalism, and even, with Kelo as a late datum, property, O'Connor should have been largely pleasing to conservatives. Midkiff, however much one might disagree with her distinguishing of it in Kelo, was obviously for her a kind of one-off predicated upon the unique factor of the extraordinary maldistribution of land in Hawaii.

At the same time, her decision in Casey was spectacularly disappointing, and in Stenberg so much the more so. For those of us, who, like me, think foetuses are human beings (gosh, I was once a foetus, and never a salamander, and always a human--however salamanderlike I may have looked at the formation of the primitive streak) this was an extraordinarily non-progressive decision, a setback for human rights, and most importantly totally unwarranted as a matter of the meaning of the Constitution. That stare decisis should have been held decisive in the denial of the right to life (Casey) but not decisive in the denial of a right to homosexual sodomy (Lawrence, though to be fair O'Connor would have held off from overturning Bowers) does not leave me excited about Justice O'Connor's tenure on the court, at least as measured by the central human rights challenge of our times (yes, even bigger than Darfur, which is very, very big).

As a general comment about her jurisprudence, it will come as no surprise to regular readers of this blog that, whenever (and it was often) Justice O'Connor and Justice Scalia disagreed over whether the Court should prefer "rules" (which she always regarded as "rigid") or "careful balancing of case-by-case facts", I sided with the rigid rules of Scalia. The latter approach, generally framed by its defenders (such as Cass Sunstein) as being a sort of modest jurisprudence, was in fact the opposite. By refusing to announce clear rules and dispense with cases on the basis of clear principles, the muddled moderation that characterized much of O'Connor's jurisprudence amounted to an aggrandizement of the Court's authority, and resulted in uncertainty for parties in a variety of cases. For a court that refuses to increase its caseload despite having four times the clerks it once had, it is not very consoling to hear that the decisions made are "case by case" and "carefully balanced on the facts before the court." They are really not there to spend all day with detailed fact patterns. If that is what they want to do, they should take 8,000 cases a year, rather than 82. Given the unlikelihood of that event, better to announce rules, and better also to stay out of certain areas of national life altogether.

Nevertheless, I am grateful for O'Connor's decision in Bush v. Gore, which as Henry Monaghan noted in his article on the matter for the Columbia Law Review was correctly decided and part of a routine line of cases "second guessing" state supreme court determinations of state law, and for her resignation from the Court when there is a chance that a person who respects the text and history of the Constitution might be appointed in her stead.

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