The O’Connor Legacy, I

An important point that should be kept in mind:

Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly egregious death sentence and the privacy cases.

O’Connor was, overall, a very conservative justice. She was just somewhat less principled (or, to be generous, more “minimalist”) than Scalia or Thomas, which is beneficial for people who don’t like Scalia’s jurisprudence if not to her credit in other respects. I will return to the significance of the federalism cases later. But I think as well–granting that the case is even more embarassing for S/T/R–that we should not forget about Bush v. Gore. As Jeffrey Rosen said (New Republic, 12/25/00):

On monday, when the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court’s emergency stay of the manual recount in Florida; they felt naive and betrayed by what appeared to be a naked act of political will. Surely, we agreed, the five conservatives would step back from the abyss.

They didn’t. Instead, they played us all for dupes once more. And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor…

[…]

The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

What, precisely, is the conservatives’ theory? “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another,” they declare. The citation is Harper v. Virginia Board of Elections, the case that invalidated the poll tax in 1966 on the grounds that it invidiously discriminated against the poor. But there is no claim here that Florida’s recount law, shared by 32 other states, discriminates against the poor. Indeed, Florida argued that its scheme is necessary to avoid discrimination against the poor, because a uniform system of recounting that treated the punch-card ballots used in poor neighborhoods the same as the optically scanned ballots used in rich ones would systematically undercount the votes of poorer voters. By preventing states from correcting the counting errors that result from different voting technologies, the conservatives have precipitated a violation of equal treatment far larger than the one they claim to avoid.

Particularly given O’Connor’s personal stake in the outcome, Bush v. Gore remains a towering monument to bad faith. And it should not be ignored.