Sunstein is a fan of narrow-holding, one-case-at-a-time judging. A common critique of this kind of judging, voiced in recent weeks by conservatives dissatisfied with Justice O’Connor’s jurisprudence but by no means confined to the right, is that it detracts from the predictability that is a valuable feature of the rule of law and ignores the need for principles that constrain judges’ whims and idiosyncrasies. What Sunstein does here is to sidestep that critique by trading on two different meanings of the word “predictability”–by pretending that every conservative who criticizes O’Connor for her unpredictability is demanding a party-line justice, a justice who is predictable in the sense of supporting the Republican platform’s policy positions in every case. It’s one thing for Sunstein to say that conservatives’ legal views about takings, affirmative action, and other issues don’t really follow from the judicial principles they claim to uphold (such as originalism)–when Sunstein writes in this vein, as he does a little bit here and has done more in other recent op-eds, I think he scores some real points. It’s another thing to suggest that when people criticize O’Connor for unpredictability, what they’re saying is that they don’t want impartial judging.