Fox News Channel has just read Justice Sandra Day O’Connor’s letter to President Bush tendering her resignation, contingent on the appointment of her successor. And so it begins.
Many pixels will be posted on O’Connor and the nomination battle to come. My opening shot is that, whatever else might be said about her character or her significance as the first female justice, O’Connor should be remembered as one of the worst contributors to American jurisprudence in recent history. She was notorious as a “swing vote,” equally maddening to Left and Right at various times. But she consistently held one of the most expansionist views of judicial power, committed always to the most capacious version of the Court’s authority over American life. A few years ago I told my students my “O’Connor rule” for saving oneself a lot of trouble: If the Court has declared anything unconstitutional, and the vote was 5-4, and the fifth vote was provided by O’Connor, the case was wrongly decided. Reading the opinions is necessary only to confirm that judgment.