July 2, 2005
THE WEATHERWOMAN:
O'Connor Held Balance of Power (LINDA GREENHOUSE, July 1, 2005, NY Times)
[I]t is because Justice O'Connor has played such a pivotal role on the court for much of her 24-year tenure that her unexpected retirement is such a galvanizing event. Much more than the widely anticipated retirement of the predictably conservative Chief Justice William H. Rehnquist, her departure creates an opportunity for President Bush to shape the court.The last such defining moment occurred with the retirement in 1987 of Justice Lewis F. Powell Jr., whose position on the court then resembled Justice O'Connor's today. President Ronald Reagan nominated a polarizing conservative, Robert H. Bork, whose defeat by a Democratic-controlled Senate after a protracted battle still resonates today.
A list of the issues on which Justice O'Connor has held the balance of power goes far to explain why holiday weekend preparations screeched to a halt in Washington on Friday morning as word spread of her decision to retire.
Just two years ago, she wrote the opinion for the 5-to-4 majority that upheld affirmative action in university admissions. Earlier, in a series of decisions interpreting the Constitution's guarantee of equal protection, she led or joined 5-to-4 majorities that viewed with great suspicion government policies that took account of race in federal contracting, employment and electoral redistricting. Her view was that the government should not be in the business of counting by race.
But in Grutter v. Bollinger, the University of Michigan case decided in 2003, she became persuaded that affirmative action in university admissions was still justified.
It's precisely that kind of completely unprincipled judging that is most damaging to the Court's authority. Posted by Orrin Judd at July 2, 2005 12:00 AM
The Court is supposed to rule sparingly and to evaluate matters based on constitutionality not politics.
Political questions are supposed to be left to the elected officials not some star-chamber of boobs in black robes. Even New Dealers like Frankfurter understood that.
Posted by: bart at July 2, 2005 8:35 AMAren't you the same one who wants them elected?
Posted by: oj at July 2, 2005 8:54 AMYesterday, Eugene Volokh said:
Justice Scalia described his jurisprudence as "The Rule of Law as the Law of Rules."
Justice O'Connor, a pragmatist, saw the work of the law as making law work.
To which I replied:
"Good but not quite right. Justice O'Connor, a political hack, made it up as she went along."
Posted by: Robert Schwartz at July 2, 2005 4:00 PMOJ,
I do want them elected but that doesn't mean I want them to be activist either. The standards of Constitutional decisionmaking should be determined ultimately by the voters, but there are a whole series of old doctrines like standing, ripeness, political question etc which have been thrown to the wayside by a judicial system that careens like a drunken sailor.
Posted by: bart at July 3, 2005 8:46 AMYou want the form but not the substance, slow learner, eh?
Posted by: oj at July 3, 2005 8:57 AM