Wednesday, June 25, 2003

Rights and Reason: O'Connor's Legacy

There's too much on my plate right now for me to spend a great deal of time ruminating over the affirmative action cases, but I will briefly discuss how the split rulings will impact the judicial legacy of Sandra Day O'Connor. Many conservatives, in the wake of Monday's decisions, have called for O'Connor to announce her retirement so that President Bush may nominate a more principled replacement. I certainly share that sentiment, although it must not be forgotten that it was the president's cowardly decision to overrule Solicitor General Ted Olson in favor of White House Counsel Al Gonzales' "diversity is okay in some circumstances" position that gave O'Connor the political cover she needed to rule as she did. Had General Olson been permitted to file his much stronger draft brief, O'Connor might have well voted in favor of overruling the Michigan Law School's admissions regime.

If O'Connor were to retire when the court adjourns tomorrow, it may well be that her ruling in Grutter v. Bollinger will be remembered as her signature opinion. It's actually rare that an individual justice--rather than a particular court, such as the "Warren Court"--gets remembered for a particular opinion over a body of work. In my mind, there are four such opinions which stand at the pantheon of historical legacies: John Marshall's opinion in Marbury v. Madison, Roger B. Taney's opinion in Dred Scott v. Sanford, Earl Warren's opinion in Brown v. Board of Education, and Harry Blackmun's opinion in Roe v. Wade. Taney's was obviously the most nefarious, Marshall's the most politically important, Warren's the seminal judicial act of the 20th century, and Blackmun's the most controversial in modern times.

Where does O'Connor in Grutter fall? To be fair, she doesn't come close to Taney's level of moral corruption in Dred Scott. Nor does she act in the spirit of the unanimous Warren Court in Brown. This leaves her somewhere between Marbury and Roe, which like Grutter were cases involving the intervention of the court in political disputes.

John Marshall was a great justice and a great politician, and I mean that as a compliment. In Marbury, he was faced with enormous political pressure from Thomas Jefferson (a great American, but not a great politician) to essentially ignore the law. Jefferson's minions were threatening Marshall and his colleagues with impeachment over their disagreements with certain rulings. The easy thing would have been for Marshall to back down. Instead, he fashioned an opinion--one of the first to be a true "opinion of the court" and not a collection of individual explanations--that recognized political reality without becoming a slave to it. This is the kind of thing many modern judges, including O'Connor, could never hope to accomplish, both because of the cultural conservatism of today's courts and the substitution of expediency for genuine principle.

On the other side, you have Blackmun's Roe opinion, a noble effort that produced an ignoble result. Had the Court stuck to the narrow question of whether a state's near-total ban on abortion was constitutional, the justices might have gotten themselves out of the situation without ignoring a major firestorm. Instead, Blackum went for the kill too quickly, and tried to unilaterally rewrite the legislative rules on abortion without basing them in a great deal of facts (such as deciding when life actually begins and how rights should be applied thereto.) While the result of Roe was basically correct, Blackmun's methodology led to legitimate gripes about judicial imperialism.

O'Connor's history suggests she falls closer to Blackmun than Marshall. Indeed, O'Connor's signature opinion prior to Grutter may well have been her collaborative opinion (with Anthony Kennedy and David Souter) in Planned Parenthood v. Casey, the 1992 case which reaffirmed and superseded Roe as the governing standard in abortion cases. There, the unusual triumverate opinion tried to settle the abortion question once-and-for-all by again rewriting the law, only this time doing so in a manner far vaguer than Blackmun did. It might have settled the constitutional question, but politically it just made both sides of the issue even angrier.

This then is my verdict on O'Connor: She's a political judge, and a bad one at that. She turns cases into a matter of settling political disputes rather than settling the law itself. Grutter reflects that ideology perfectly. Had she stuck to the law, the outcome would have been unpopular in some quarters, but the legal issue would have been basically settled. Instead, O'Connor tried to settle the "national debate" over affirmative action by upholding Michigan's policies, then adding her belief that 25 years from now, such policies won't be necessary. No doubt O'Connor believes that we're all just going to stop fighting over the issue until 2028.

If O'Connor or another justice does retire this week, the president must resist his apparent impulse to put another political judge on the Court. That's not to say he shouldn't consider politicians necessarily; I've been an advocate of thinking outside the "elevating appellate judges" box. In fact, one candidate that merits serious consideration is Sen. Mitch McConnell (R-Ky.), one of the few principled defenders of individual rights in the current Senate. I would also not mind elevating Solicitor General Olson. Among the current appellate judges, my preferred candidate would be Ninth Circuit Judge Alex Kozinski.

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