Why Jeffrey Rosen Misses Sandra Day O’Connor

by Ramesh Ponnuru

Why I Miss Sandra Day O’Connor” is the title of New Republic legal-affairs writer Jeffrey Rosen’s latest. If your reaction is to think, “Um, because you’re a liberal” you will not be wrong.

Rosen writes that “her approach looks far better than that of her more conservative and increasingly influential replacement, Justice Alito, a pro-executive power justice who is often less sympathetic than O’Connor was to individual rights and liberties.” His next comment illustrating the difference: “O’Connor strongly suggested that, unlike Alito, she would have voted to uphold California’s law restricting violent video games.” Okay. . . but how does that further the case that Alito is less sympathetic to individual rights and liberties? And keep in mind that most of the justices on the Court were more convinced that the law should be struck down than Alito was. If one takes the view that the law should have been upheld, it is bizarre to single out Alito as particularly misguided on the issue.

Example two is campaign-finance regulation, which O’Connor would be more likely to uphold than Alito has been. Again, how does this illustrate the claim that O’Connor is more libertarian than Alito? It would seem to illustrate the reverse.

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