Bench Memos

This Day in Liberal Judicial Activism—January 31

2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire takes effect.  Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise.  Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency.  Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases.  Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations.

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