A letter to Oyez: O'Connor's legal philosophy

(I said I hate crossposting, see my post regarding my Guest Post at Evan's blawg (available here), but this e-mail was too good not to put up for folks to read and/or respond to)

To: Oyez
Re: Sandra Day O'Connor biography, available at http://www.oyez.org/oyez/resource/legal_entity/102/biography

Hi,

I don't mean to bug you, you must be busy -

Reading the Oyez page on O'Connor's biography (nice, well done, interesting and informative), I was struck by your "difficult to define" language about her core legal philosophy. I know that this is received wisdom of the legal academy, but I can't help but find it wrong.

Just as Thomas's legal philosophy could be summed up in three short propositions:

1) the text governs. if the text is mistaken, stick with the text; it can be corrected. if the text is ambiguous, check the structure of the whole. If the prior understanding of the text is mistaken or ahistorical, correct it.

2) original intent governs, and if current practice or understanding is inconsistent with original intent, it should be overruled.

3) stare decisis should be applied to cases that are rightly decided, and not for cases which are not.

[#3 is like the modified agency deference standard, whereby an agency's correctly reasoned decision will be upheld and a wrongly reasoned one won't- which is to say, absolutely no deference whatsoever, but it makes them feel better if their decision is upheld.]

[#3 is also implicit in #1 and #2.]

Similarly, Justice O'Connor's precepts could be summarized in, I would guess, no more than three axioms.

One would be, Each case is to be decided under the facts and circumstances presented by the controversy itself.

Number two would be, Neither the expectations of society nor the impact upon all present and future parties may be disregarded by an honorable judge.

And number three might be something like, The clear words of text should govern, unless they are not clear due to the clearly expressed intent of the legislature, and neither superficially clear words nor expressed intent may overrule the demands, explicit and implicit, of the Constitution, as correctly understood.

Her views on the effect of consensus, national or international, are not, I would guess, part of the axioms, except insofar as they inform #3.

I hope this was interesting or useful.

Regards,

Eh Nonymous

[update: I notice from this article by Steve France that Sunstein had already commented on "the theory of no theory" that he called Minimalism, and praised O'Connor for holding it. I see also from that article that Posner warned that such so-called minimalism could lend cover for wedge decisions, such as in Romer v. Evans (now overruled). Now, I thought that most wedge-decision-producing cases were brought strategically as a way of accomplishing social change; I _want_ those to be decided minimally, but compassionately, and yet with attention to the structure and text of the Constitution, but also some leeriness of applying original intent, but also without going overboard for softheartedness for individuals, states, or the Federal Government, etc. etc.

I also note that Posner uses the Sounds-Good style of Judicial Pragmatism, see generally Howard's questions for Judge Posner in his 20 Questions series, "20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit," published in December, 2003. Pragmatism, as I say, sounds great, but I worry that a judge could be too pragmatic and lose sight of certain fundamental, and in my view irreplaceable, aspects of judging: doing the hard thing, forcing the powerful to lose just as the weak sometimes must, coming up with the distasteful but correct solution, and wrestling with the difficult. Judge Posner makes it look easy, and he's a very very bright man. I'm just not as confident as he is that he's always right. Still, he doesn't get reversed much. It's hard to reverse what you either can't argue with, or don't want to. So, point in his favor.]