Friday, July 01, 2005

The S.S. Minnow

This snippet, from an AP story on Justice O'Connor's retirement, may be the perfect summation of the futility of her reign (and it has been a "reign") on the Supreme Court:
Perhaps the best example of her influence [because of her "swing vote"] is the court's evolving stance on abortion. She distanced herself both from her three most conservative colleagues, who say there is no constitutional underpinning for a right to abortion, and from more liberal justices for whom the right is a given.
For liberals, this sort of wishy-washiness gives the illusion of depth. In reality, it is a dangerous combination of superficiality and narcissism.

Notice what it says above: she distanced herself from those who said there is no constitutional underpinning for a right to abortion and from those who said there is. Bill Clinton fans love to call this "nuance," but a better word for it is "nonsense." Either the right is in the Constitution or it isn't. If it's not there, the conservatives are right. If it is there, the liberals are right. But to say "maybe it is, maybe it isn't" is judicial cowardice. There's no middle ground between "is" and "isn't," despite O'Connor's flailing attempts to stake one out. That's why I actually have more respect for the consistent Court liberals like Stevens and Ginsburg than I do for O'Connor and her twin Anthony Kennedy. The liberals may be consistently wrong, but at least they've done the hard work of putting together something of a judicial philosophy.

Ultimately, history will view O'Connor as a rudderless ship upon stormy waters. Her jurisprudential legacy will be that she had no real jurisprudence. She had no compass, no substantive philosophy of law to ultimately guide her other than her own shifting personal opinion du jour--an opinion she held in such high esteem she was willing to impose it on the rest of us by fiat.

No comments: