September 23, 2007

Review Of The Nine Reveals O'Connor Flaw

But not the one that Toobin tries to reveal in regards to the Bush v. Gore decision.

O’Connor was clearly Toobin’s most important source. She’s also — readers can decide if it’s coincidental — his hero: the justice, he argues, who through her pragmatic, seat-of-the-pants jurisprudence single-handedly kept the court close to the American mainstream, particularly on matters like reproductive freedom and affirmative action.

Excuse me -- court decisions, especially Supreme Court decisions, are not supposed to be based upon considerations like the political opinions of the majority of Americans or a judge's views of the same. They are supposed to be rooted in precedent, law, and the Constitution. If the picture painted by Jeffrey Toobin (and characterized above by reviewer David Margolick) is correct, Sandra Day O'Connor was unqualified to sit on the Supreme Court and performed her duties in an unfit manner for nearly a quarter of a century. It explains what I have long pointed out in my college level American government classes -- the lack of a clearly consistent jurisprudence on O'Connor's part. She is too busy trying to shape policy based upon some majoritarian impulse more appropriate to the Legislative or Executive branches.

As one of my students noted in a paper some years ago, an O'Connor opinion (especially when compared to those of her fellow justices) often seemed to be a conclusion in search of reasoning to support it. Now we know why.

Oh, one other comment on a Toobin tidbit discussed in the review.

Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)?

Simple -- O'Connor and Rehnquist had known each other since their days at Stanford Law School (it is even suggested that there might have been a few dates). Stevens and Rehnquist had become fast friends in the latter's early days on the Court and worked together for some 30 years. The rest of the justices were at least a decade younger and had a decade less service on the Court -- and had all come aboard AFTER (or in Scalia's case, concurrent with) Rehnquist's move to the center chair on the bench. Their relationships were therefore different from the rest.

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