Honoring Madame Justice O'Connor

I'm not going to go crazy talking about Justice O'Connor's retirement right now, and probably will comment during the run-up to the confirmation process of her still-to-be-named successor at most sparingly, largely by reference to others' discussions, and hopefully with some sense of balance. But it is an event to remark upon, and one I wouldn't let pass entirely undiscussed.

Today, I spent a significant fraction of my morning reading the New York Times' extensive coverage of Madame Justice O'Connor's retirement and the battle sure to ensue on television, in the print media, and on the floor of the United States Senate. No one expects it to be anything but
ugly.

But we'll get to that soon enough, possibly as soon as August if Bush selects a sufficiently incendiary nominee to warrant prematurely ending the Senate's summer recess. For now, we have the time, and an opportunity, to reflect on Madame Justice O'Connor's distinguished career, and the pivotal role she played during her 24 years on the Court. I find myself wholly in agreement with the Times Editorial board, which writes:

Justice O'Connor holds some strong views that this page does not share. She was fiercely protective of states' rights, and joined federalism decisions that unduly restricted Congress's power to protect people against discrimination, pollution and other ills. And history will have to judge her role in Bush v. Gore, in which she joined a bare majority of the court in overturning the Florida Supreme Court - in conflict with her oft-expressed deference to the states - and ordering that Florida's recounting of ballots in the 2000 presidential election be stopped.

[snip]

She was sometimes called the most powerful person in America. That seems like a huge overbilling for a woman who toiled at legal writing in a modest office with a small staff, and whose vote was only one of nine. But on issue after crucial issue, it was her swing vote that decided what kind of nation America would be. Justice O'Connor's America is one that hews to conservative principles, but it is tempered by a compassion for individuals and an unwillingness to follow ideology blindly to unreasonable places.

Indeed.

My kindest words, however, and my highest regard, I reserve for Dahlia Lithwick, who the Times invited to write a column reflecting on Madame Justice O'Connor's retirement. She begins with a personal remembrance:

N the fall of 1992, Justice Sandra Day O'Connor spoke to my first-year law school class at Stanford University, her alma mater. My class, which was almost 50 percent women - black, Hispanic, gay and disabled women among them - received her warmly. She is, after all, a feminist pioneer. The first woman on the United States Supreme Court, Justice O'Connor broke through glass ceilings the way women of my generation broke nails. She, more than any other woman in the legal profession, proved that we could be whatever we wanted.

Which is why her speech was so stunning: it was curt and unsentimental and - if recollection serves - it concluded with a lament about how annoying it is to receive late-night telephone calls from death row petitioners with only moments left before their executions. I left the hall furious, wondering how a woman could be so heartless.

But like the Editorial board, and like me, she cannot sustain her fury, or even her discomfort.

True, her conservative roots run deep, as she has proved innumerable times. But it's somehow impossible for me, both as a woman and as a lawyer, to stay mad at her. Because try as she may, she can't suppress an inner softie, and it has come to animate so much of her jurisprudence. Justice O'Connor's swing votes in so many of the most contentious areas of the law - religion, abortion, affirmative action, for example - show a sneaking strain of empathy for the outsiders, the disadvantaged, for those who feel coerced or shamed.

"A sneaking strain of empathy" is, I expect, the most apt and evocative summation of Justice O'Connor's jurisprudence I will read in the coming days, as pundits, scholars, and pols attempt to define, and unfortunately to manipulate in some cases, Madam Justice O'Connor's legacy. Lithwick continues:

Justice O'Connor's jurisprudence is narrow and fact-centered. Sometimes the lines she draws are visible only to her - something that has driven her colleague Antonin Scalia to near apoplexy on more than one occasion. But her position as one of the last real open-minded moderates - the tiebreaker in a generally polarized court - reveals how powerfully those skills in diplomacy, compromise and pragmatism that she developed as an early feminist can bear fruit.

And so the many helpful graphics to be found on the Times site dedicated to this historic event illustrate: Madame Justice O'Connor is the justice whose decisions are least consistent with her brother and sister justices; she has been most likely to strike out on her own, to vote one way on affirmative action in one case, and another way in its companion, drawing those elusive lines that anyone who's attempted to understand her cases for work or pleasure must agree were sometimes virtually invisible but not necessarily suspect for their elusiveness.

Indeed, her opinions are often a pleasure to read, regardless of whether one agrees, for the painstaking way she marshalls facts and pragmatic policy concerns with surgical precision. Contrast this with the originalist cudgel swung pell mell by Justice Scalia, the ideological absolutism of Rehnquist, Thomas, and (to be fair) Stevens, and the inscrutable self-aggrandizing self-spotlighting of Justice Kennedy, who often appears to be all too conscious of the legacy he is fashioning (notwithstanding his historically consistent voting with the conservative bloc of justices, he has replaced Justice Souter as the GOP's favorite whipping boy as a turncoat). One cannot but conclude that Madame Justice O'Connor, who so faithfully served the United States Supreme Court and by extension the United States Constitution and the nation, will be sorely missed. Notwithstanding my many differences with her jurisprudence, I consider her one of the great women, if not the greatest, I've had the pleasure to watch work in my lifetime. Her absence from the Court, no matter who replaces her, will be felt sorely by many people, including those who often disagreed with her. One can only hope she is replaced with a jurist of comparable integrity, poise, and temperance.