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.