Saturday, July 02, 2005

O'Connor's Retirement and What's Now at Stake

Casual observers and serious scholars of the Supreme Court both know one thing about retiring Justice Sandra Day O’Connor. She had a penchant for being the swing vote in important decisions. This was due in part to her practical rather than ideological reading of Constitutional law and the importance she placed on precedent. And it’s this practicality that the Court could lose should President Bush appoint a more ideological justice.

This is bad news for liberals and moderates, according to E. J. Dionne Jr. of the Washington Post. Dionne says:

The danger for moderates and liberals is not the end of liberal judicial activism -- those days are over -- but the onset of a new era of conservative judicial activism. You'll never know it in the commotion of the coming months, but the O'Connor succession fight is not primarily over Roe . The real battle is over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights.

That's why, to liberals, O'Connor now looks so good. She was sometimes wrong from their point of view, but she was not always wrong and she was not predictable. She was not a pioneer looking for some lost Constitution and she was not trying to make history by starting a new era of one sort or another. When she used the phrase "grand unified theory," it was to criticize it.

I’ve always admired O’Connor. She was solidly in favor of states rights. She was respectful of precedent. Her opinions made a real effort to be based on reason rather than theory and she always sought to set clear boundaries on which later interpretation of law could be based. The Court and the nation will miss her.

But does her retirement spell doom for liberals and even moderates? I’m not so sure the alarmist reactions are warranted—certainly not before a nominee has even been selected. In recent years, O’Connor hasn’t even been the only swing vote, as Justice Kennedy has become more moderate and, like O’Connor, seems to have little thirst for judicial revolution. He could very likely assume the role of the Court’s Centrist leader.

And let’s remember, despite the rhetoric we often hear, the Supreme Court is not our master. They are servants to the Constitution and we the people have the ultimate power over the Constitution. There’s nothing that the Supreme Court can do that can’t be overridden by a Constitutional Amendment. And even if federal legislation is shot down, the states almost always reserve the right to pass such legislation themselves.

Liberals have lived by the Court for many years. But they don’t have to die by it. Besides, can’t we at least wait to see who Bush nominates before casting out doomsday predictions? And can’t we at least wait to see how the new court adjudicates before we run for the hills? Everyone is gearing up for a huge fight, but we hardly even know the real stakes.


At 11:17 AM, Blogger Shay said...

How is it dangerous nearly as much to moderates as to liberals? After all, a bona fide moderate is someone who agrees with conservatives about half the time. Let's keep it real here: Dionne is conflating moderates and liberals in his quest against a solidly conservative nominee.

So rolling back statist encroachment in our affairs - to a smaller government and federalism, per the U.S. Constsitution -constitutes "conservative judicial activism"? While I certainly agree that conservative judicial activism and overreach exists (and I'd like to see another moderate-conservative replace O'Connor), it is not in this arena where it exists. And contrary to Dionne's ridiculous claim, liberal judicial activism still exists as well.

At 3:24 PM, Blogger AubreyJ said...

Safe holiday to you and yours Alan and Joe. See Ya in the Blogs.........

At 7:04 PM, Anonymous Anonymous said...

There will, no doubt, be determined efforts from both ends of the political spectrum to classify any nominee as "with us" or "against us." Most of them will be nonsense -- a reflection of the world-view of the authors rather than of the prospective Justice. Not to mention that Supreme Court justices are unpredictable, even before their views evolve over time.

Certainly Bush will not nominate a flaming liberal (and probably couldn't get him thru the Senate if he did). But what will the nominee actually do on the bench? And how will it play out in the nation?

Merely outraging the most liberal will not prove that there is a problem. On the other hand, someone who purely delights the most reactionary will probably be a signal for a political backlash -- if I was a Republican legislature with any but the most secure safe seat, I'd be real nervous about the next election.

At 10:33 PM, Blogger Sean said...

how can you oppose conservative judicial activism, and want someone like O'Connor to replace her? She was a conservative judicial activist.

but lets remember O'Connor was thought to have been against Roe v Wade before she sat on the court; Kennedy was seen as being as conservative as Bork, just without the baggage.

At 3:17 AM, Blogger Sammler said...

O'Connor is being praised from the left, for her concern with "justice" rather than principle. This is apparently what "moderate" means in the case of judges. More here.

At 10:59 AM, Blogger Rob Jackson said...

We all also have to remember that the Supreme Court is larger than its individual members. The 9 Justices are not only bound by the Constitution but also by the Court's previous decisions. If individual leanings and personal jurisprudence were all it took to make decisions on the Court, the Court would overturn itself enough not to be credible in the eyes of the public. Since rulings and written opinions from the Court almost always happen out of compromise, it's not surprising that most Justices appear to become more centrist once appointed.

My prediction on who Bush will nominate: Bush will talk about being a uniter, not a divider and will then proceed to nominate Robert Bork. You heard it here first!! :-)


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