The Justice of Compromise: RIP Sandra Day O'Connor
Sandra Day O'Connor passed away on Friday. The first female Supreme Court Justice was an inspiration to millions of American women and girls. She was a life-long Republican who rose through the ranks of Arizona politics at a time when few women were allowed to engage directly in high-level government service. Ronald Reagan nominated her to be a Justice in 1981, and twenty years later Jeffrey Rosen, the head of the National Constitution Center, famously remarked that "we are all living in Justice O'Connor's America." She was at one time the most important judge in the United States.
Despite a long career centered around the GOP, Justice O'Connor departed from the party line throughout her tenure on the Court. She preserved a woman's right to abortion, upheld (with substantial limitations) affirmative action, actually enforced the establishment clause, unlike all six conservative justices sitting today, and tried to broker compromise on many difficult issues such as the relationships between and among free speech, money, and fair elections.
Justice O'Connor was constantly searching for compromise and common ground with both the other justices and the American people. Her political career -- she was the last justice who held an elected office prior to being put on the Court-- probably explains that desire for consensus as that used to be an admirable political goal. I doubt anyone on the Court ever sought it more.
Because of her search for political solutions to hard cases (which often resulted in flexible balancing texts providing little guidance to lower courts and the public) I was highly critical of her jurisprudence earlier in my career. Linda Greenhouse, in her excellent obituary published on Friday in the New York Times, quoted me as saying in a law review article published a long time ago that, "Justice O'Connor's constitutional law decisions, taken as a whole, threatened rule of law values.... Her reluctance to articulate principles governing cases, as well as her inconsistent treatment of legal doctrine, failed to provide enough stability, predictability, or transparency to differentiate legal rules from personal preferences."
Linda did not consult with me prior to her publishing this obituary and, if she had, I would have asked her to remove my critique, as yesterday was not the appropriate time for those observations. Nevertheless, when I wrote those words in 2006, I had not yet fully come to the realization that the Supreme Court is not a real court and the justices are not real judges. On some level, perhaps Justice O'Connor saw the Court in a similar fashion, given that she was always more concerned with resolving the precise issues in front of her one case at a time rather than indulging in grand theories which much more often than not simply hide non-legal value judgments.
Justice O'Connor famously said that strict scrutiny of affirmative action programs should be strict in theory but not fatal in fact. She did not like bright lines. Her test for establishment clause cases was whether the government "endorsed" religion. Her standard for abortion was whether the government was placing an "undue burden" in the way of women seeking abortions. And she utilized a multitude of free speech tests that more often than not were no broader than necessary to resolve the case in front of her.
I used to think that kind of one-day-at-a-time approach to constitutional litigation was inappropriate and simply allowed the justices to decide any case they wanted to any way they wanted to without the burden of following precedent. But then I came to realize that the justices do that anyway whether the precedent at hand is flexible functionalism or the most formalistic formalism. Life tenure and virtually unreviewable power inevitably lead most justices to see the law and their personal preferences in the same way. That being the case, Justice O'Connor's attempts at political compromise and consensus building through the use of tests that, often boiled down to nothing much more than simple fairness and justice, kept the Court and the country on a more stable path than those justices who wish to govern forever with clear rules implementing their often partisan value judgments.
Of course, there is much to criticize about Justice O'Connor's jurisprudence, especially her relative indifference to the plight of the poor and her role in Bush v. Gore. But those criticisms must wait until more time has passed, providing us better perspective on her long and important career. For now, it is enough to simply say that the first female Supreme Court Justice always carried herself with pride and dignity, that her law clerks and Court personnel famously and fiercely loved her, and that she tried to find middle ground with friends and foes alike in a way that would be of such great service today. She is truly missed on the Court and in the country, and that might be the highest compliment anyone can pay a Supreme Court Justice.