Yesterday's story on Justice O'Connor in USA Today contends that her legacy---defined in substantive terms---is fading fast. The story (accurately) quotes me for the proposition that it's not especially surprising that a case-by-case incrementalist would not leave a long-lasting legacy. I am also quoted, also accurately, for the proposition that insofar as CJ Roberts likes to leave liberal precedents on the books, even as he guts them in substance, he may be leaving open a path for a future liberal Chief Justice, to take him at his word and return the favor.
Here I want to clarify a point: I did not mean the points about Justice O'Connor as a criticism. Even Justices who write with a broad brush can see their precedents overruled, and to the extent that split-the-difference compromises do leave a Justice's decisions more vulnerable to overruling, that is not necessarily a bad thing. I suspect that Justice O'Connor herself would say something to the effect that her goal was never to establish legal principles rather than simply to decide cases. That's a legitimate conception of the job. Mind you, it's not what I regard as the best conception of the job, but then I've never held the job, and Justice O'Connor has.
None of that, however, is a defense of the CJ's occasional practice of paying lip service to precedents that he guts in substance, even if that proves to be a self-defeating strategy in the long run.
Posted by Mike Dorf