More On Justice O'Connor

Death provides a chance to contemplate things. President Lincoln used honoring the dead of Gettysburg to provide a statement of basic American republican values. Funerals honor both the dead and a whole lot more.

We are seeing more reactions from the death of Justice Sandra Day O'Connor. I knew that her death was going to come some day soon. She was over ninety. She left public life over five years ago. Reports are that she showed signs of decline for years before that. Like many obituaries, including that of Henry Kissinger, people had words in reserve.

(President Biden gave Kissinger a bare paragraph that between the lines underlined what he thought about the guy. His statement for O'Connor is more detailed.) 

Linda Greenhouse, the retired long term Supreme Court reporter, has a very good obituary. The justices themselves also have released statements. As usual, Justice Souter's remarks are brief and touching. Likewise, Breyer (who was close friends with O'Connor) had an emotional statement. Each justice had nice things to say, including Alito who has turned against her legacy. This legacy is a matter of jurisprudence, style, and civics.

Eric Segall is referenced in Greenhouse's obituary remarking that O'Connor had a pragmatic jurisprudence that threatened the rule of law. Segall interviewed Greenhouse for his podcast. In his own remarks, he noted:

Linda did not consult with me prior to her publishing this obituary and, if she had, I would have asked her to remove my critique, as yesterday was not the appropriate time for those observations.

I find this a rather ridiculous statement. Why is it not an appropriate time? The obituaries provide an analysis of her life and career. Is he following some dubious "can't say anything bad about the dead" rule here? O'Connor herself, famously outspoken and blunt, is not likely to be miffed or something. It is fitting and proper to discuss her career as a whole.

But those criticisms must wait until more time has passed, providing us better perspective on her long and important career. 

Why? She resigned from the Supreme Court over fifteen years ago. Much has been written about her career, including biographies. What is wrong with criticizing her career? Segall has no compunction in criticizing Scalia and Thomas. I find his comments here a tad bit strange. Nonetheless, by now, I am not surprised that he makes some dubious claims.* 

(I am a fan of the Dorf on Law blog. I find myself usually in agreement with Michael Dorf. I also often agreed with his wife. Prof. Segall is a charming person and he makes some good arguments. He also makes some very dubious ones. His take on the 14A, sec. 3 provision, including the firm assurance that the best path is for congressional Democrats to waive the disqualification for Trump, in my opinion at times goes off the rails.) 

Prof. Segall notes that in time he respected O'Connor's pragmatic one case at a time approach as he decided that the justices were not acting like judges. O'Connor basically was just being more honest about things. Again, I find this a bit silly. I don't accept his whole "not a court" business. If I did, why (after two decades of legal service, both in the courts and academia) Segall still did not recognize it in 2006 is rather dubious. 

Life tenure and virtually unreviewable power inevitably lead most justices to see the law and their personal preferences in the same way.

Okay. Does he somehow think state judges, who do not have life tenure, do not act this way? State judges are even more likely to do so (a matter that concerned Justice O'Connor) when they are chosen by partisan elections. In some fashion, the safe harbor of life tenure (good behavior) might to a limited degree allow more neutral adjudication. At least, that's the theory. 

Anyway, thinking about these issues now is fine. Major events, including the passing of great personages, provides a suitable period of contemplation. The "not the time" when gun deaths lead people to talk about gun regulations is a misguided statement. 

So is this.

Sandra Day O'Connor had a long career. She continued in a public role after she resigned for the Supreme Court. She pinch hit (like Souter) on the lower courts. She promoted civics. She continued to write books. She even was appointed to the Iraq Study Group. This was after a long pre-Court career, including many years in state politics, and twenty-five years on the Supreme Court. A lot of material to contemplate.

We can fully honor her life in many ways, including fully contemplating the meaning of her career, and how things have changed. 

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A Friday order dropped: 

The application to vacate stay presented to Justice Alito and by him referred to the Court is dismissed as moot. 

As usual, we are not given anything more. This article provides some more details about the overall situation. 

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* Of course, there is much to criticize about Justice O'Connor's jurisprudence, especially her relative indifference to the plight of the poor and her role in Bush v. Gore.

Bush v. Gore is of course her most infamous decision. This included her remarks after the election when she thought Gore had won. 

I'm not sure what "relative indifference to the plight of the poor" means. It clearly was not something unique to her. It wouldn't be my go to as compared to certain federalism decisions and so forth.

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I checked a liberal blog and decided to add a bit more. This can be done ad infinitum basically with all the commentary, but anyway, enough with this blunderbuss. She was not "Bush v. Gore all the way down." 

(Admittedly, it is unclear what that exactly means.)

O'Connor "handed her seat to the writer of Dobbs." This is bullshit. She resigned to take care of her husband. This is actually founded on clear evidence as compared to supposition about "saving Roe." In hindsight, she was upset she retired. She did not share the views of Alito on many issues. And, Bush picked someone else first. O'Connor might even had an expectation Harriet Miers (who conservatives worried about as something of an unknown) would follow her.  

The Twitter/X screenshot uses Bush v. Gore to basically erase everything else she did during her career. We get a nod to her "half-preserving" Roe basically as a bludgeon against her since she was replaced by Alito. 

Her actual jurisprudence protecting privacy rights (drug testing, gay rights, and more) is basically handwaved. Many comments suggest she did basically nothing positive. Even the "half-preserve" is dubious. Dobbs underlines that Planned Parenthood v. Casey is not thin gruel.  

No, for those who think it's true in the comments, Casey was not toothless. Not only did lower courts repeatedly strike down laws, the Supreme Court itself did so. O'Connor joined one such opinion involving so-called "partial birth abortion."  Another major one took place after she left the Court. It was used to block TRAP laws in Texas. Her very last opinion reaffirmed basic abortion rights. 

The opinion strengthened the reasoning of Roe by adding more teeth to the principles involved, especially regarding sexual equality.  This also helped other areas of law, including LGBTQ rights. A more conservative leaning Supreme Court was going to allow more regulations anyway. 

The blog begins with a nod at her being better than Alito and Thomas. Okay. Who cares? HOW was she better? Gorsuch is better than those two as well. That is faint praise. The blog spends most of the time rubbing it that she was horrible and even the good things she did were negated by her retirement. Toss in yet another potshot at Ruth Bader Ginsburg.

[I originally said more about retirements but that is a whole big aside. Suffice to say I think that blog's take a tad simplistic. Also, at first, John Roberts was going to replace O'Connor. Then, Rehnquist died.]

I hated Bush v. Gore. I lived through it.  It is a sign of courts run amuck, including why conservative claims of judicial restraint depends on whose ox is being gored. No pun intended. Let's be honest however, and realize that Bush was not president merely because of that ruling. A likely result would be a disputed final count, the two houses of Congress dividing, and the default being the original official count. AKA Bush. 

Bush v. Gore was not when the Supreme Court died or something. It was a grievous example of its tenure. It is akin to Dred Scott or Dobbs. We can't ignore everything else, including same sex marriage or whatever. 

This blog is filled with people who are disgusted when the state wants to execute someone for heinous murders. But, Bush v. Gore is enough to damn O'Connor to hell. One ruling over a career spanning a half-century. This is a vision of humanity that I ultimately find rather depressing. 

Anyway, that's it for now.