The Breakfast Table
Gaming the Justice Thing, Brilliantly
By Dahlia Lithwick
June 26, 20032:30 PM
Dear Walter,
I couldn't agree more that Justice O'Connor is the lynchpin as far as the current court is concerned, and the primary reason for the amazing turn of events this week. It's incredibly telling that she sided one way in each of the two Michigan cases, even where–and I know you disagree with me here–it's ultimately very hard to reconcile the two, except in very cosmetic ways. While the statistics you cite are indeed intriguing, it's worth recalling that this is a pattern that's been holding fast for several years now: O'Connor as decisive fifth vote, O'Connor never being on the losing end of a case, O'Connor never authoring a dissent, O'Connor concurring in the holding but on narrower grounds. It's been said (and said, and said) that Sandra Day O'Connor is the most powerful woman in America. I think we're only just starting to see why.
O'Connor isn't merely the moderate fulcrum on a court that is otherwise pretty consistently polarized 4-4. She is also the justice willing to write the narrowest opinion, frequently confining her holding to the facts of the case. In this way she can almost always find 4 votes that share her viewpoint, if not her reasoning, without signing off on their broad principles of law. O'Connor is often criticized for this narrowness of scope: She wants to see fairness and justice done in each case, more than she worries about creating an elegant structure of precedent for future courts to follow. And because she is so extraordinarily placed right now, she is able to turn whole bodies of law into the law of "Sandy Says."
For instance, O'Connor changed the Roe v. Wade test for permissible abortions into her own "undue burden" test. Now states can regulate abortion, so long as such regulations do not unduly burden the mother. Who's to say what's an undue burden? Sandy says. O'Connor's created the same unknowable test for affirmative action with her decision in the Michigan case: Now schools can use race to achieve a "critical mass" of diversity in a class. Who's to say what constitutes a critical mass? Or what is a permissible use of race to achieve it? Sandy says. Moreover, in the same case O'Connor announced that affirmative action programs should sunset away in the future. But who's to say when the world will be sufficiently diversified? Sandy says.
You have long contended, and I have always agreed, that the trick of the Rehnquist court is that they are not necessarily for states rights, or for Congress, or for the individual, per se. They are for their own power to pick and choose which of the above institutions they will privilege on any given day. It seems O'Connor does that both as a member of the court, but also on a micro-level: She picks and chooses which cases, which causes, and which plaintiffs will be bestowed with her unique brand of justice, and she chooses the yardstick by which justice will be measured. Then she yanks the rest of the court around to her position. My guess is that to her mind this is precisely what judging is all about. And in some large biblical sense she is correct. But you can't help but sympathize with a Scalia, who sees rigid precepts and principles first and individual justice second (if that). O'Connor's disproportionate power must drive him insane.
I'm guessing you have more to say about what makes O'Connor tick, and I am chomping at the bit to hear it. She fascinates me, and always has, since the day she spoke to my law-school class about how annoying it is to be woken up late at night with requests for death-row stays of execution. Annoying? Someone is about to be executed. If you don't want to be woken up at midnight, get an accounting job.
I used to find O'Connor somehow unsophisticated, or old-fashioned, or lacking in imagination. I now suspect that she knows exactly what she is doing on this court and has known all along. I'm secretly pretty proud that it was a woman who gamed this whole justice thing so brilliantly.
Speak to you tomorrow,
Walter Dellinger and Dahlia Lithwick