The mainstream media’s praise of Sandra Day O’Connor isn’t really about O’Connor.
This Washington Post editorial is called (in the paper edition) Justice O Connor, a trailblazer whose path is being erased. It praises O Connor for being a centrist, and complains (as O Connor reportedly did late in her life) that her centrist legacy is being undone.
I can understand why O Connor is complaining. What judge would want to see part of her jurisprudence overturned?
But the Post s complaint is hypocritical. Does anyone believe the Post would be squawking if cases in which O Connor provided the deciding vote, but that went the conservatives way, were swept aside by a left-liberal court? I don t.
The Post mentions only two cases: Grutter, in which O Connor, writing for the majority, upheld racial preferences in a law school admissions case, and Casey, in which O Connor cast the vote that saved Roe v. Wade for years.
It s interesting to see the Post complaining that Grutter has been undone. O Connor s opinion predicted that the need for race-based preferences to assure diversity would probably expire within 25 years. We don t know whether, if that didn t happen (and it hasn t), she wanted preferences upheld indefinitely.
Some of the praise for O Connor points out that she was the rare Justice in modern times who had experience in a legislature. Passing a law with a sunset provision is something a wise legislator might do. Hinting at an expiration date for a Supreme Court decision seems like another matter.
Anyway, splitting the baby, as O Connor tended to do in controversial cases, isn t the way to build a lasting jurisprudential legacy. Compromises designed to win the votes of fellow Justices or to kick the can down the road tend not to endure for as long as more principled rulings.
As for Casey, this isn t the place to debate the Court s abortion jurisprudence. It’ seems ironic, though, that given O Connor s background as a state legislator, she would be the deciding vote upholding severe restrictions on what states can legislate in this area.
The Post approvingly quotes this statement from a 2003 O Connor essay: Rare indeed is the legal victory in court or legislature that is not the careful byproduct of an emerging social consensus. Roe v. Wade was not such a legal victory.
Neither, in my view, was Casey. And social consensus is better reflected in legislative outcomes and voter referenda than in court cases where unelected judges discover new constitutional rights and then reaffirm them.