Unexpectedly but not unforseen, Justice Sandra Day O’Connor has announced her resignation from the Supreme Court of the United States. Many had expected Chief Justice Rehnquist to resign after this term because of his health, but Justice O’Connor has apparently been ill for some time, too.
There is a lot of speculation as to who will replace her and many dire predictions of what will happen to this or that area of jurisprudence (particularly the issue of abortion). I for one did not always agree with Justice O’Connor’s reasoning or results, but I have also always respected her search for nuance and meaning in the law, and her steadfast refusal to see the Constitution in terms of black and white moral absolutes, but rather as the embodiment of guiding principles of the political and legal thought that underlies the nation. Perhaps no other member of the Court has been so concerned with balancing tests when confronted with significant Constitutional questions, and for good reason — she clearly saw her primary job as reconciling competing rights with our shared national ideals.
Her concern with balancing tests, her status as a “swing vote” on many critical issues, and her commitment to finding a middle way between extreme views, has on more than one occasion led me to believe that the Supreme Court for the past several years has been guided by her vision of the law more than any other Justices’, and thus to think that it would be accurate to speak of the Supreme Court of the past eleven years as the O’Connor Court. That she was the first woman to serve on the nation’s highest court seems to be an insignificant footnote on her long and distinguished career — as it should be. Her legacy will be that of an intelligent, and confident judge who handled a position of great power well. On balance, I was (and will remain) a fan of Justice O’Connor.
Her successor will almost certainly be more politically conservative than she was, given the political beliefs of the President; and her successor will almost certainly not vote the way she would have on whatever issues come before the Court, and thus guide the future of the law, as she would have. This is inevitable and the result of democracy in action; as the Chief Justice correctly said this January in defense of his colleagues’ independence from political pressure, “the gradual process of changing the federal Judiciary through the appointment process” is the manner in which the courts are held accountable to the people as a whole.
Regardless of the inevitable political hurricane that is sure to follow this news, I hope that Justice O’Connor’s successor will maintain her concern with balancing the rights of the individual against the power of the state, and reconciling the law and the Constitution with the myriad of competing visions of our ideal society that are presented to the courts daily. This is not a conservative or liberal view of the role of a judge; it is rather a view that the law is, in many ways, a thing apart from political concerns in that it represents the ideals of a society and of a people. Those who like her possible successor Edith Jones, accuse O’Connor of becoming a “mandarin of the law” and who decry that “we all live in Justice O’Connor’s America” seem to forget that due to her efforts to find a moderate way through the difficult questions that divide us between competing versions of the good, we have found ourselves in a society with laws and social conditions that everyone has been able to thrive within, even if not every detail of that world is exactly as one would have it.
“Justice O’Connor’s America” was, for the most part, an America for all Americans, and the law to her served as both the guarantor of individual rights and the defining force limiting the government’s power. This is as good an epitaph for her jurisprudence and vision of the law as she could ask for.
