The Columnist Manifesto

Part II of III

Don't Let the Screen Door Hit You

For a balanced appreciation of Justice O'Connor, with keen insights about why Supreme Court Justices shouldn't be treated to hero worship, see Althouse's excellent post. For my imbalanced look, read on.

I think Justice O'Connor is an average legal mind who for three reasons gets a lot more credit for jurisprudential intellect than she deserves.

(1) She gets kudos – both deserved and undeserved – for being the first woman justice. (See my post from yesterday.)

(2) All justices get too much credit for intellect. (More on this tomorrow.)

(3) She gets a huge benefit from the Lewis Powell Effect.

The Lewis Powell Effect is an undue aggrandizement of status as "fair-minded" and a "thinker" accruing to a justice who shrewdly positions himself as a swing voter. A lot of attention gets focused by lawyers and commentators on how that Justice thinks, because persuading that Justice becomes so important. And because he or she is not predictably aligned with a particular "wing" of the Court, the Justice gets a lot of undeserved credit for seeming to think through the divisive and high-profile controversies on which he or she swings.

Powell built his quite respectable reputation entirely on this tactic. The crown jewel of his reputation – the bloated and confused affirmative action ruling in Regents of University of California v. Bakke (1978), in which he indulges his fantasy of playing "University Admissions Director for a Day" – has become the Magna Carta of contemporary affirmative action doctrine. Yet his legendary centrism may have masked a fundamental weak-mindedness, into which his flip-flop in Bowers v. Hardwick (1986) offers a significant clue.

Powell is plainly the role model for Justices O'Connor and Kennedy, though Kennedy was too often unwilling to vote with the liberals to outduel O'Connor as the inheritor of the Powell "Mantle" (even though Kennedy shows signs of the Powell weak-mindedness: viz. his flip- flopping on abortion).

The best that can be said for Justice O'Connor's "jurisprudence" is her arguable attempt to reinvigorate judicial federalism – a thread found in her opinions for at least 10 years before the so-called "federalism revival" on the Rehnquist Court. And it's interesting to speculate how her perspective as a former state legislator may have led her to have more respect for state laws and legislative processes than the average Supreme Court justice. But when push came to shove, her federalism didn't run very deep. With few exceptions, she followed a federalism-based jurisprudence in cases where that principle dictated a result consistent with her conservative political leanings -- or where her political leanings didn't point to any particular result. She was no more likely than any other justice to follow the logic of federalism principles to a result contrary to her political tastes.

For me, two things stick out about Justice O'Connor more than anything else about her as a jurist. One is that, while she demonstrated an ability to empathize with women discrimination victims, she somehow drew a blank when asked to translate that empathy to racial minorities.

In her famous concurring opinion in Price Waterhouse v. Hopkins (1989), Justice O'Connor readily found compelling "direct evidence" of sex discrimination in the denial of a partnernship promotion to female accountant who was not sufficiently "feminine," in the words of an internal company memo. But in Watson v. Forth Worth Bank and Trust (1988), less than a year earlier, Justice O'Connor considered it only "subtle" and indirect evidence of race discrimination when a black employee was denied a bank teller position because, according to the interviewer, the teller job "involved a lot of money for a black person to have to count."

O'Connor's record on race discrimination is in my view mixed at best. O'Connor followed Powell in the belief that affirmative action is a form of race discrimination that gets strict constitutional scrutiny because discrimination against whites is just as bad as discrimination against minorities: a view that ignores both history and current social and economic realities. Moreover, by consistently rejecting the idea that affirmative action is permissible to counteract "societal discrimination" (another Powellism she adopted), Justice O'Connor has contributed a great deal to painting the Court into its current corner of relying on the dubious "educational diversity" rationale for affirmative action.

I am certainly grateful that O'Connor voted to uphold affirmative action in Grutter v. Bollinger, but in doing so she left the narrowest possible window for affirmative action. Better than no window at all – but a reason to lionize her?

What's more, in Grutter, O'Connor heavily indulges in her oft-remarked and worst fault as a jurist: her steadfast refusal to say what the law is. All Grutter tells us is that some affirmative action is allowed, and that Michigan Law School's plan was okay, but it tells us next to nothing about whether anyone else's affirmative action plan is okay. Everyone other than Michigan simply has to wait to be sued and see what happens. Thanks a lot, Justice O'Connor.

To my mind, Justice O'Connor's penchant for lengthy, fact-bound opinions that decided only the case at hand is not a judicial philosophy, but a derogation of her task as an appellate judge. The job of appellate courts in many, and of the Supreme Court in pretty much all of its cases, is to set clear legal guidelines for lower courts and litigants. Obviously, given the Court's decisionmaking process -- five-justices must agree to render a clear decision -- that is not always possible. But decisions that fail to give guidance are an unfortunate by-product of the Court's decisionmaking process, not a virtue to be sought after.

Even where she did not consciously set out to decide only the case at hand (as in Grutter), Justice O'Connor would issue opinions whose key concepts were maddeningly vague and difficult to follow. In her concurring opinion in Price Waterhouse, where she stubbornly refused to join a four-justice plurality opinion even though she fundamentally agreed with it, she stated that discrimination had to be proved with "direct evidence," blithely ignoring 100 years of settled evidence law on the validity of circumstantial evidence and sowing confusion in the lower courts that was not resolved for 15 years.

So let's get this straight: Justice O'Connor was neither a great (or even very good) legal mind as Supreme Court justices go, nor a friend of any sort to liberals. For liberals to celebrate Justice O'Connor on this record (is that happening? Maybe someone can tell me!) is, in my view, a kind of jurisprudential version of the Stockholm syndrome.

Sure, we'd all be happy if President Bush nominated someone just like her. But that's because on the Supreme Court, Justice O'Connor played the role of the lesser evil. The lesser evil is better than the alternative, but it is not good.

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