O'Connor's out

Justice Sandra Day O'Connor, having served for 24 years on the Supreme Court of the United States, resigned this morning, July 1, 2005, setting off a summer of controversy over President George W. Bush's nomination to replace her. Howard Bashman has collected news links at How Appealing; check SCOTUS blog and, well, every other form of media known to humanity for more.

Justice O'Connor's biography at findlaw, here, lists her prior positions, including Maricopa County (Phoenix, AZ) Superior Court, Arizona State Senator (including Senate Majority leader from '73 to '74). She was also a member of Order of the Coif and was on Stanford Law Review's editorial board.

She served as Assistant Attorney General for the state of Arizona, from 1965-69.

These positions gave her a rather different background than most of her colleagues on the bench; few were state court judges, and only two others were state attorneys general or assistant state AGs: David H. Souter, who was Attorney General of New Hampshire, as well as an Associate Justice of the NH Supreme Court; and Clarence Thomas, who was assistant AG of Missouri. Most importantly, she was a trial judge, giving her a very different experience from those of her fellow Justices who had been in the practice of law, taught law, been in government, or been appellate judges only before their elevation to the high court.

Justice O'Connor's joining of, and sometimes carefully circumscribed concurrences to, 5-4 majorities gave her a powerful position as the least predictable, most "swing" vote of the Court for many years. The law of the land might have been what the majority decided, but if only four votes stood for a broad proposition and O'Connor's qualified "yes" was the fifth, then her opinion was the holding of the case, the narrowest most limited statement of what the case stood for. [Note: No, I do *not* mean to write "for which the case stood." It's awkward, it's unnecessary, and it is in no wise more grammatical. The idea of outlawing propositions that dangle is a recent invention having no place in modern English language and routinely violated by all writers, from the worst to the very best. Any rule flouted the paragons of English writing, not just for effect but routinely, and with no loss of comprehension is not a rule at all, not even a suggestion. Analogously, see Language Log on obligatorily split infinitives, and again here.]

Since Justice O'Connor decided each case, she said, on the facts and circumstances of that controversy as it arose, rather than having absolute and fixed and unalterable opinions on The Law which would be applied without fail to the case before her, however unreasonable or cruel the outcome (cf. Clarence Thomas, a man of such rigid rectitude that he has almost never changed his mind at oral argument; a very brilliant man, but not one given to waffling), she was often likely to vote one way in one case and the reverse in the next. This gave her unpredictability, as noted above, but also opened her to accusations of inconsistency, particularly from Justice Scalia. Since O'Connor's pole star and guiding mantra was "decide each case on its facts, not on one's prejudices or on a set of facts not before us," she was in her own way just as principled, just as fixed as Justice Thomas. Predictability of results is no virtue when the outcomes are *bad*, I would argue. Justice Thomas does not concern himself as much with the moral values of positions, more on their legal justification. It is hard to fault him for doing so, but I admire Justice O'Connor's attention to and praise of judging with attention to morality. By this I most definitely do not mean the position of the Scalia dissent in Lawrence, which was a model of biased judging (in response, I can only suppose, to what he perceived as similarly unprincipled reasoning).

Judging that takes into account the effects on society is no more active than is judging with utter disregard for the outcomes. It is merely that the one can be attacked as unethical, while the other can certainly be criticized as immoral.

I welcome comments, as usual. Civilized ones only; rants will be punished by means so fiendish and violent I shudder to contemplate them.