Justice O'Connor Resigns
There was something a little poignant about watching the announcement of Justice Sandra Day O'Connor's resignation from the Supreme Court this morning. As a little girl, I always thought that I wanted to be a Justice, and I remember my excitement back in 1981 when she was nominated by my hero, President Reagan -- and the picture I cut out and kept of the newly-sworn-in Justice O'Connor coming down the steps of the Supreme Court, accompanied by then-Chief Justice Warren Burger (it's still hanging on the bulletin board in my room at my parents').
Of course, the speculation about O'Connor's succession is already in full flight -- but there's time for all that. Let's first consider Justice O'Connor's impact on the Court.
Much has been made of O'Connor's power as a "swing vote" on the Supreme Court -- some of it less than favorable, of course.
Perhaps what disappointed me most about Justice O'Connor's jurisprudence was its tendency to try to resolve one case at a time, often on that case's particular facts. One can understand the appeal of that approach (it offers reassurance that one has made the "right" decision in a particular case) -- but the proper function of the Supreme Court isn't exclusively to decide individual cases. It's to use those cases as an opportunity to draw bright line legal principles that can serve as clear guidance to the law of the land and that can be easily applied by the many, many courts that look to the Supremes for resolution of the toughest issues.
For example, Justice O'Connor's abortion jurisprudence holds that state laws imposing an "undue burden" on the abortion right are unconstitutional. That's fine (if that's how you interpret the Constitution)as far as it goes -- but the problem is that it's a standard, not a principle. What's an "undue burden" to you might not be one to me. And so one ends up with jurisprudence whose application to other cases is unclear -- where the application, in fact, could rest entirely with the predilections of the given judge hearing the given case -- and his personal opinion, for example, on what constitutes an undue burden.
Same problem with the "balancing tests" she seemed to like. If the Court doesn't offer legal rules -- and instead just throws out several considerations any particular judge should "balance" in reaching a decision -- there's no clarity and no predictability. That may enhance the power of an individual judge, but in the end, it makes the American people subject to little more than the whims of those in the black robes. And to my mind, that's a BIG problem.
That being said, Justice O'Connor was, by all accounts, a very nice woman -- good to her clerks (whom she would have to her house for dinner pretty frequently, very close to her grandchildren, and very conscientious about her work.
All the best to her as she goes into retirement.
Of course, the speculation about O'Connor's succession is already in full flight -- but there's time for all that. Let's first consider Justice O'Connor's impact on the Court.
Much has been made of O'Connor's power as a "swing vote" on the Supreme Court -- some of it less than favorable, of course.
Perhaps what disappointed me most about Justice O'Connor's jurisprudence was its tendency to try to resolve one case at a time, often on that case's particular facts. One can understand the appeal of that approach (it offers reassurance that one has made the "right" decision in a particular case) -- but the proper function of the Supreme Court isn't exclusively to decide individual cases. It's to use those cases as an opportunity to draw bright line legal principles that can serve as clear guidance to the law of the land and that can be easily applied by the many, many courts that look to the Supremes for resolution of the toughest issues.
For example, Justice O'Connor's abortion jurisprudence holds that state laws imposing an "undue burden" on the abortion right are unconstitutional. That's fine (if that's how you interpret the Constitution)as far as it goes -- but the problem is that it's a standard, not a principle. What's an "undue burden" to you might not be one to me. And so one ends up with jurisprudence whose application to other cases is unclear -- where the application, in fact, could rest entirely with the predilections of the given judge hearing the given case -- and his personal opinion, for example, on what constitutes an undue burden.
Same problem with the "balancing tests" she seemed to like. If the Court doesn't offer legal rules -- and instead just throws out several considerations any particular judge should "balance" in reaching a decision -- there's no clarity and no predictability. That may enhance the power of an individual judge, but in the end, it makes the American people subject to little more than the whims of those in the black robes. And to my mind, that's a BIG problem.
That being said, Justice O'Connor was, by all accounts, a very nice woman -- good to her clerks (whom she would have to her house for dinner pretty frequently, very close to her grandchildren, and very conscientious about her work.
All the best to her as she goes into retirement.
posted by LadybugUSA at 10:12 AM
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