What a concept
The passing of Justice Sandra Day O’Connor, the first woman named to the U.S. Supreme Court, has received a flood of remembrances. But one in particular emphasizes what differentiates her from justices who came later. She was a politician first, “rising to become the majority leader of the Arizona state Senate” (Politico, Peter S. Canellos):
In its history, the court has been divided almost evenly between justices whose primary experience was in electoral politics, law practice or academics, with many of the academic-minded justices having spent significant time as judges on federal courts. But over the years the profile of a judicial nominee shifted strongly in favor of scholarly judges. Today, potential Supreme Court justices tend to establish their judicial ambitions at a very early age, often in their 20s, attain lower-court appointments in their 30s or early 40s and thereby position themselves for appointment to the high court before they reach middle age.
O’Connor “brought a practicality to the court that most of today’s justices lack,” the Washington Post Editorial Board writes in outlining her contributions as “an avatar of change and progress” who was also “painstakingly centrist.” O’Connor, the Board continues, “was a living argument for thinking beyond the ordinary litmus tests in selecting judges and other powerful officials.” Late in life she confided to a friend, “Everything I stood for is being undone.”
That’s because today, with a heaping helping of encouragement and resume-polishing assistance from the Federalist Society (founded the year after O’Connor’s appointment), aspiring justices today need not dirty their hands with compromise or bother themselves with the messy fallout from their decisions. O’Connor was not such an ivory tower creature.
Politico again:
By the standards of 1981, O’Connor’s experiences were highly useful for a high-court nominee. County courts are where the judicial rubber meets the road, where real-life disputes find their way into the legal system. O’Connor was charged with achieving a just result for prosecutors, defendants and civil plaintiffs in a wide array of cases. Her time on the campaign trail had also put her in contact with average people, helping her to better understand their expectations of the government and justice system.
Implicit in her role as Senate majority leader — for which she was the first woman in any state — was a certain amount of deal-making and compromise. This was not, of course, reflexive compromise, but rather the need to decide carefully when to draw a sharp line of principle and when to accept deals that achieve only some worthy aims. Presumably, a key consideration in any deal must be the greater good of the public.
As the court has become a combat zone in which rarefied ideological battles play out, having a legislative history and a life outside of law and the courts has become disqualifying. More’s the pity. It has left us with a court peopled with justices with more concern for legal theories and less for the practical impacts of their decisions on ordinary people.
Some of the same nominees who, by dint of their slender record, could pose as neutral arbiters of the Constitution for the purposes of the confirmation process brought to their court work the haughty certitude of faculty-lounge debates. Whatever its outward attempts to portray civility, the court in its written opinions took on the character of a law-school debating society. Confident in their ideology and surrounded by like-minded figures, justices often voted a party line on divisive social issues but defended their stances as matters of high judicial principle. In their rock-ribbed views of the Constitution there was little room for interpretation, let alone compromise.
For many years, O’Connor was the main antidote to this tortured dynamic. She was widely advertised as the court’s swing justice. It fell to her, along with fellow justices David Souter and Anthony Kennedy, to craft a middle ground on abortion in the 1992 case of Planned Parenthood v. Casey. That opinion became a virtual fly paper for critics on the left and right. And yet now, in the wake of O’Connor’s death, many legal and political leaders are yearning for just such a compromise.
They’d best not hold their breath.