Google+
Close

Bench Memos

NRO’s home for judicial news and analysis.

Can Mush Be “Dismantled”?



Text  



According to this USA Today article, former justice Sandra Day O’Connor “says she regrets that some of her decisions ‘are being dismantled’ by the current Supreme Court.”  But O’Connor was notorious for rulings that failed to set forth any clear principles, and I don’t see how a decision can be “dismantled” without its ever having been meaningfully assembled in the first place. 

The article claims specifically that since O’Connor’s retirement the Court has “retreated from some rulings in which she crafted consensus, including on abortion rights, campaign finance and government race-based policies.”  I’m not clear what “consensus” O’Connor crafted in these areas.  The sharply divided 5-4 decisions in Planned Parenthood v. Casey and Stenberg v. Carhart would hardly seem to reflect any grand “consensus” on abortion.  Perhaps someone can discern a consensus in the Court’s major campaign-finance ruling in McConnell v. FEC, but the Court’s own summary of positions suggests otherwise:

Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II-A, and II-B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.

And the cross-cutting 5-4 and 6-3 decisions in Grutter v. Bollinger and Gratz v. Bollinger, respectively, also fail to suggest a consensus in the area of racial preferences.

As for the Court’s supposed retreat:  The Court’s sound exercise of judicial restraint in its 2007 ruling on partial-birth abortion in Gonzales v. Carhart amounts to an effective reversal of its decision in Stenberg, but the basic Roe regime, as modified by Casey’s highly subjective “undue burden” standard, remains, alas, in effect.  It’s true that the as-applied ruling in FEC v. Wisconsin Right to Life narrows the scope of McConnell, and the pending Citizens United case may do so as well, but it’s far from clear that McConnell itself was faithful to previous precedents.  And the Court’s recent rulings on racial preferences haven’t touched on the law-school and college admissions policies that were at issue in Grutter and Gratz.

More broadly, O’Connor’s ad hoc decisionmaking was inherently unclear and unstable, so there’s no reason that she or anyone else should imagine that there should be such a thing as an O’Connor judicial legacy.


Tags: Whelan


Text  


Subscribe to National Review