Sandra Day O'Connor Retires

Get the AP story here. She made history as the nation's first woman US Supreme Court Justice. Not just in sitting on the bench, but in the decisions in which she made. History will remember her as a complicated Jurist that defied easy catagorization in a time of extreme partisan political discourse. Conservatives certainly have had reasons to love and hate the woman. Liberals have seen at different times both pasture and gore their sacred cows. Her own observations reveal an unintended irony, one that her independence helped to evoke:

"It has been a great privilege indeed to have served as a member of the court for 24 terms," the 75-year-old justice wrote Bush in a one-paragraph resignation letter. "I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure."[emphasis mine]

I find it odd that a Supreme Court justice admires the Court for an integrity that it has defiled for at least three decades. John Marshall may have radically read the power of Judicial review into the constitution, but at least his innovation fit the character of the Judiciary as a branch of government that interpretes the law. His successors, starting with the Warren Court, have unmoored the Supreme Court from this tradition. There's stark evidence of that here. Among some of the startling decisions of the Court:

Here are typical criticisms of Roe—from liberals who support a right to abortion:

* "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.… At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking." John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935-937 (1973).

* "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Laurence H. Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973).

* "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." "Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms." Edward Lazarus, The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, Oct. 3, 2002 (at http://writ.corporate.findlaw.com/lazarus/20021003.html). (Mr. Lazarus was a law clerk to Blackmun and describes himself as "someone utterly committed to the right to choose [abortion]" and as "someone who loved Roe’s author like a grandfather."),

Granted, these are opinions. Note, however, that they're opinions of those that support abortion rights! They would prefer to see those rights secured through the legislative process of the Republic. They rightly point out that the Court's decision lacked a fundamental consistency with decisions reached in the past. Explicit or implicit justification routed in the Constitution appears nonexistent. This is strange legal behavior for the institution that under it's founding justice appointed itself the final arbitor of all things constitutional.

The degradation of the Court's integrity continued in Planned Parenthood v. Casey, 505 U.S. 833 (1992), only this time, Sandra Day O'Connor sadly participated in it. Consider the absurdity of the majority opinion of which she contributed:

Justices O’Connor, Kennedy, and Souter combined to produce a joint majority opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the sterile incoherence of Blackmun’s opinion in Roe.

In Casey, the Court relied on the combined force of (a) its "explication of individual liberty" protected by the Due Process Clause and (b) stare decisis to reaffirm what it described as (c) the "central holding" of Roe. 505 U.S. at 853. Each of these elements warrants scrutiny.

The core of the Court’s explanation of the liberty interests protected by the Due Process Clause is its declaration, "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." 505 U.S. at 851. This lofty New Age rhetoric should not conceal the shell game that the Court is playing. What the Court’s declaration really means is that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.

Of course, her ironic participation in the Supreme Court's departure from appropriate ajudication demonstrates the larger problem of American society. We Americans no longer agree about who we are and what we value. The Culture War and the current Red/Blue state divide in which it manifests politically confirm the presence of our National identity crisis. Do we want to be the secular progressivist nation that will master our destiny with the correct technological, political, economic and social engineering? Or do we want to be the tradition-honoring nation that celebrates the rights to life, liberty and the pursuit of happiness through private enterprise, federalism and a moral culture? Do we want to be some combination of the two? Or do we want something else entirely.

The truth is we may never have agreed about who we are and what we value. The first political parties grew out of the competing visions of American federalism espoused by Jefferson and Hamilton. Throughout history, the country has known divisions: North v. South, state v. territory, rural v. urban, Democrat v. Republican. Perhaps only the mutual threat to all of us that the Totalitarian powers of the Twentieth century united us to whatever extent that it did. Clearly, even with the war on Terror, that unity has long since past away. These days in particular, however, point to a heated division in our national identity that we may not have seen since the Civil War.

Sandra Day O'Connor's tenure on the Court reveal just how torn the nation's culture has become. Not willing to completely part with the traditions of the American people, she nevertheless participated in the majorities that safeguarded abortion. While clearly acknowledging the scourge of racism on our society, she nonetheless wrote the majority opinion that strike down as unconstitutional a minority set-aside program for construction projects in Richmond, Va. Her scathing dissent in Kelo v. New London illustrates her skepticism of government activism and her concern over the aggregation of the rights of the powerless into the hands of the powerful. Perhaps the best identifyer for her is that of progressive traditionalist.

I believe history will look favorably on her performance. In spite of her unfortunate support of abortion "rights" in Planned Parenthood v. Casey, she has generally sought as centrist a position as one could expect in these partisan times. While her judicial activism may have led to certain regretable consequences, her restraint allowed the Court to avoid others. Society may ultimately benefit from her level-headedness. Time will tell.


Update: Will Bloomfield over at Thoughts from the Right has this to say about O'Connor:

O'Connor, though named by a Republican President, was no conservative. O'Connor rarely voted with the three conservative members of the Court (Rehnquist, Scalia, Thomas). Instead (to name a few examples), she voted to uphold legalized abortion in Planned Parenthood v. Casey, voted to strike down the partial birth abortion ban in Carhart, and voted to strike down the Texas sodomy statute in Lawrence v. Texas.

He offers a cogent analysis of the Democrats strategies for confronting President Bush's nomination to the Court. I think he's dead on when he observes the Dem's dilemna. With so much fanfare from moderates on both sides of the aisle over the New Great Compromise(TM)on judicial filibusters, the Dem's will pay a price among swing voters in 2006 if they blow the deal.

As to his comments on O'connor, I don't think we disagree. O'Connor was not a conservative. She was not quite a liberal. The possible exception, unfortunately, proved to be the most essential to a just society: she was way too liberal on abortion and the "right to privacy". I've tried to point out that in many ways her tenure on the Court, and the decisions she made there, represent well the trauma our culture has experienced regarding it's identity. This in no way is to wax enthusiastic about her performance. It is to say she could have done much worse.

Mr. Bloomfield made some points about her part in SCOTUS more recent controversies. Planned Parenthood v. Casey and the Carhart decision speak for themselves. As for Lawrence v. Texas, one could argue that she indeed took a conservative position on the case, or at least a libertarian one. She clearly opposed the power of the Texas government to interfere with the behavior citizens engaged in within their own dwelling. The law itself was a stupid law. Had the police not entered with a search warrent for an entirely different matter, they never would have witnessed the crime. It does not follow that any or all sins must be illegalized. The State may tolerate certain evils if the measures it takes to prevent them unleash proportionally greater evils upon society. Many conservatives could argue that the State's power to arrest people for consensual conduct performed within the privacy of their own home could be subverted or abused to easily. This would certainly lead to greater evils than the one the police prevented in Lawrence v. Texas. This may be one case in which she acted according to Conservative belief, even if many conservatives opposed the decision that SCOTUS reached.