Bench Memos

Defining O’Connor’s Legacy Down

This article on the “tug of war” over Justice O’Connor’s legacy uncritically adopts an all-too-familiar narrative: The Left embraces Justice O’Connor’s moderate record while the Right disparages her lack of fealty to conservative principles. There is some truth in this — Justice O’Connor has been quite moderate (even liberal) on many issues — but I would have expected the article’s author, Tony Mauro, to dig a little deeper. While many on the Left have praised O’Connor for preserving Roe and state university affirmative action programs, an O’Connor clone would still be a controversial nominee. Many of those who claim they want a replacement Justice with a similar judicial philosophy actually demand a nominee far to O’Connor’s left on key issues, including federalism and criminal procedure. Part of the “tug of war” over O’Connor’s legacy is, in fact, an effort to redefine her jurisprudence and represent her as significantly more liberal than she’s actually been on the Court.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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