I had by no means heard of Sandra Day O’Connor when information broke that she was President Ronald Reagan’s seemingly nominee for the brand new Supreme Courtroom emptiness. This was in 1981, towards the top of my tenure as legislation clerk to Justice Thurgood Marshall, and a bunch of us crowded across the one Lexis terminal within the court docket library—sure, one and sure, one terminal—hoping to trace down a few of her opinions.
We did not discover a lot. We definitely discovered nothing to point that she would grow to be some of the revered and beloved judges within the Courtroom’s historical past.
O’Connor, who died Friday on the age of 93, has been praised as a job mannequin (true), a author with sharp and clear opinions (additionally true) and a heat and respectable human being (true a 3rd time). She’s additionally been hailed because the swing vote of Chief Justice William Rehnquist’s court docket — and that, I feel, reward misses a bigger level about each O’Connor herself and the character of the establishment she as soon as graced.
Sure, O’Connor joined in an enormous 5-4 majority. However so what? Throughout his eight phrases in workplace within the Nineteen Twenties, Chief Justice William Howard Taft was on the successful aspect in a outstanding 89.5% of the 5-4 instances, the very best share of any justice within the court docket’s historical past. However nobody perceives him as a swing voice.
The thought of the swing vote is both a vulgarism or a delusion—a narrative we inform ourselves to clarify why a justice recognized with an ideological bloc sometimes votes the opposite manner. However justice nonetheless largely sides with the bloc.
Maybe O’Connor wasn’t a swing vote in any respect; maybe we’re measuring her towards expectations of how “conservative” votes when the reality is that in her years on the Supreme Courtroom she drifted left.
Being a frequent fifth voice just isn’t the identical as being a swing voice. {That a} justice typically finally ends up with one block and typically with one other ought to please us, not as a result of it signifies that the causes we root for at all times have an opportunity. No. The enjoyment comes from the determined, if agonizing, hope that right here is at the very least a jurist who listens to arguments and will be swayed by them; who acknowledge that points are sometimes divisive, not as a result of one aspect is sweet and the opposite unhealthy, however as a result of there are affordable arguments each methods; who’re much less serious about politics than in legislation.
That was O’Connor’s manner.
Take into account her two most well-known opinions. Writing for a 5-4 majority in Grutter v. Bollinger (2003), which rejected a problem to race-conscious legislation college admissions packages, she included a prescient warning: “We count on that 25 years from now using racial preferences will now not be essential to additional the curiosity authorized at present.” That her prediction got here true 5 years early just isn’t the purpose. What issues is that she was no extra on the “aspect” of affirmative motion than she was towards it; slightly, she made the cautious judgment of the pragmatist.
On abortion, too, O’Connor sought the smart center floor, voting for state energy to impose some restrictions and towards state energy to impose others. In his 1992 opinion of a three-justice plurality in Deliberate Parenthood v. Casey, O’Connor warned of the results if the Courtroom revisited precedents simply because there was loads of opposition: “The Courtroom have to be cautious to talk and act in a manner .which allows individuals to just accept its selections on the phrases which the Courtroom requires of them, as actually based mostly on precept, not as compromises with social and political pressures which, as such, haven’t any bearing on the principled selections made by the Courtroom is obliged to take.”
Shortly after the choice was made, I occurred to be visiting my former boss, Justice Marshall, who was then retired. He had learn O’Connor’s opinion and praised it for looking for a center floor. Then he pointed to the dissenters and requested, “How would becoming a member of them have damage them?”
How precisely. However then Marshall had been tutored within the Supreme Courtroom headed by Earl Warren, who famously compromised and pushed to wrangle votes. Marshall’s grief that day foreshadowed the appalling weak spot of the present Supreme Courtroom, the place nearly each vote is predictable nearly each time. Maybe it is a longer development, if you happen to’re satisfied by information suggesting that judges’ votes have grow to be extra predictable over a half-century or extra.
However, a court docket whose selections will be predicted earlier than a case has been argued is ossified and uninteresting and worsening, not not like kinfolk who come to vacation dinner yearly and promise to be on their greatest habits, then invariably lapse into the identical livid arguments.
That’s, they make us want issues had been completely different.
I met Justice O’Connor solely a handful of occasions, however she at all times had the identical twinkle in her eye, the identical behavior of trying straight at you and talking with such allure that it took a couple of minutes to comprehend she disagreed with you. Greater than any justice in current many years, she believed within the very best of the “endlessly renewed pedagogical dialog” between the court docket and its public; and he or she was at all times keen to have interaction.
Debate all you want about whether or not “swing voting justice” is a delusion. However nevertheless one chooses to explain the jurisprudence of Justice Sandra Day O’Connor, the present court docket might use extra like her.