In Praise of Darkness

In yesterday's Washington Post, Professor Linda Ross Meyer eulogizes Sandra Day O'Connor's term on the Supreme Court. In writing this editorial, she manages to combine complacent fuzziness about the impact of Court power with self-serving sophistry smirking at the rule of law. I have reproduced the full text in this post, with added commentary.

Will the Supreme Court be different without Sandra Day O'Connor? You bet. But it will be different not only because she provided crucial votes for a right to privacy, against race-based redistricting, against state endorsement of religion and for affirmative action, etc. The court will be different without her because, if President Bush nominates a replacement on the basis of that person's position on constitutional theory, there will be no one to take the court on an outing from its ivory tower.

Justice O'Connor is known in court circles for organizing field trips for her clerks. She was determined to pry us clerks from behind our computers and from under our piles of briefs, and scoot us into the whirl of working Washington. Getting out into the real world, talking with real people, was a trial for some of her library-carrel-reared clerks, but these outings were not just matters of tourism. They gave us the foundational experience for understanding O'Connor's approach to jurisprudence and her place on the court. And they taught us what the court will lack when O'Connor leaves.

She would troop us around the District, taking in exhibits, touring postal facilities or wandering about historic ships [sic], all the while peppering every docent or captain or postal worker with her questions and characteristic energy and enthusiasm. "Isn't this interesting!" she would exclaim over the concept of self-adhering postal stamps or machinery for dredging clams from the muck of Chesapeake Bay. We bleary-eyed bookworms would dutifully agree.

To translate: Ms. O'Connor is not just sheltered, she is so sheltered that the sight of a self-adhesive postal stamp is a novelty to her. I wonder if she saw a digital watch. Probably not, since the locations chosen for these anthropological field trips -- "postal facilities" and historic ships -- are not exactly hotspots in the cauldron of the real world. Think of Ms. O'Connor "taking in exhibits": she is so isolated from the outside world that she goes to museums to catch up. And no one tells her what foolishness this is.

At the court itself, it seemed to us as if O'Connor kept her feet on the ground in a place often dominated by Grand Constitutional Theory -- a combination of theoretical absolutes and scholarly minutiae of the kind that law professors love. Justice Stephen Breyer's opinions, for example, often sound as though they came directly from the policy wonks at the nonprofit Rand Corp., complete with appendices and concordances. Justice Clarence Thomas, meanwhile, believes his job is to return the court to the constitutional law of the 18th century, according to the Framers' intent, and his opinions usually contain long historical discourses about the state of law in 1790, as capital defendants dance on the head of an historical pin.

Mr. Thomas has a framework for interpreting law. The horror! So might Mr. Breyer, if his "policy wonk" opinions are consistent.

Justice Antonin Scalia, likewise, believes in theoretical absolutes. The court should expunge all rights not explicitly articulated in the text. It should never look at legislative history. And it should establish neat, clear, interlocking rules that can be applied consistently for all areas of law (and without further judgment by presumably less-competent trial courts). "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle," Scalia wrote in his dissent to last week's court decision limiting the display of the Ten Commandments on government property.

Mr. Scalia not only has a framework for interpreting the law; he also points out the real-world meaning of the lack of such a framework. Thus he merits a full paragraph, rather than having to share one with Messrs. Breyer and Thomas. To Ms. Meyer's credit, she reasonably summarizes Mr. Scalia's reasoning, noting that the Court's job is to interpret laws (made by the legislature) in predictable ways.

But O'Connor believed that judging is not policy analysis or scholarship or ideology. Justice doesn't come from a book. The difficult decisions come in shades of gray, not black and white, and the view from the Supreme Court bench can be a narrow one. She looked to the pragmatic consequences of the court's decisions for everyday citizens, and she tried to do justice in the case while leaving play in the constitutional joints so as not to tie the hands of those closer to the facts and the people.

In place of "theoretical absolutes", we get a pragmatic absolute: more power to judges.

As a former trial judge and state legislator, she knew firsthand that abstract rules can't always assure a just result, and so her legal "rules" took the form of balancing tests that allowed wiggle room for the vast and infinite variety of real life (much to chagrin of her more theoretical colleagues). State governments could regulate abortion as long as they didn't place an "undue burden" on women; governments could display religious symbols as long as they didn't "endorse" religion or make religious minorities feel excluded from citizenship. She was also one of the few justices willing to grant certiorari in (and review) death penalty cases not just when the constitutional theories needed to be clarified, but to fix mistakes in particular cases.

They could have the death penalty, as long as Ms. O'Connor thought they were using it right. They could have racial quotas, as long as they agreed to lie about them. Stripped of the fuzzy rhetoric, this means that Ms. O'Connor decided the outcome she felt the law should dictate in each case, and developed the justifications afterwards. But she's really a good person: she "knew firsthand that abstract rules can't always assure a just result", so she systematically gave as much power as possible to judges everywhere, because litigation with an unpredictable outcome is such a boon to our society.

Her jurisprudence was characterized by a deference for local knowledge and a practical humility about the Court's ability to construct or reconstruct a seamless theory of constitutional law. If people were treated unjustly -- arrested and handcuffed for a seatbelt violation, unfairly denied an equal vote by crazy-quilt redistricting, stripped of their property in order to increase the local tax base, discriminated against because of who they were and not what they had accomplished, or detained without a hearing -- then Grand Theory had to bend to Justice, not Justice to Grand Theory. Like her predecessor, Justice Potter Stewart, she didn't need a theory to know an injustice when she saw it.

I fear that this might really be accurate: that Ms. O'Connor truly saw herself as an avatar of Justice, put in her exalted office that she might right the wrongs of society. Certainly the alternative -- that there are some powers which government may justly wield, and others which it may not, and that she might be attempting to accurately interpret existing guidelines distinguishing the two -- has no appeal to Ms. Meyer. Did she need a law to know an injustice when she saw it?

Most of what we have been hearing about potential nominees is about their "judicial philosophy" or their "theory of the Constitution." During last year's presidential campaign debates, Bush said, "I would pick people that would be strict constructionists."

And now, in anticipation not of O'Connor's retirement but of Chief Justice William Rehnquist's departure, activist groups on the left and the right have raised millions of dollars to promote or fight against nominees depending on their judicial philosophies. We're asked to support Janice Rogers Brown because she is dedicated to "preserving the Constitution as ratified," Michael McConnell because of his theory of the establishment clause, Emilio Garza or Edith Jones because they are constitutional originalists, Alberto Gonzales because of his position on substantive due process and abortion rights.

We are being asked to support judges who will honestly and predictably interpret the laws, past and future, of Congress. Apparently this is a Bad Thing.

But these positions and writings reveal just one part of what the president should know to make his next decision. Character and range of human experience should also matter. Does the nominee have truly practical wisdom -- an on-the-muddy-ground understanding of the sheer diversity of human aspiration, emotion, frailty, and passion? Does the nominee have a sense of justice to prevail where simple theory proves inadequate? O'Connor did, and a court without members of these qualities does not bode well for our future.

Judicial fiat isn't a bug, it's a feature! How dry, how unappealing is a judge who merely studies the letters of Law. Let us instead have more like Ms. O'Connor, more fearless dispensers of living Justice based on their understanding (superior, one presumes, to that of lower-court justices) of the true human condition.

All this verbiage studiously ignores the central point, which is that if judges legislate, then legislatures ipso facto do not. This is the world Ms. O'Connor has brought us toward, where power is neither vested in the legislature nor reserved to the people.

To be fair, Ms. O'Connor did not steer a straight course toward this end. To the extent that she sometimes defended principle and clarity, she deserves praise rather than scorn. But Ms. Meyer precisely inverts this equation, lauding what Robert Bork has called "the political seduction of the law" -- she has internalized this corruption so deeply that she can no longer even notice it. How many others, clerks, judges and professors, have joined the same ranks?

[Hat tip: Real Clear Politics.]

[Update 6 July: Beldar has it right. For example: "When they do join a majority opinion, it's often through watering down and muddying up the law (offering up another damned "balancing test" that barely conceals the fundamentally ad hoc and arbitrary nature of so much recent Supreme Court law), or through some sort of horsetrading like O'Connor's pragmatic but absolutely unprincipled opinion for the majority in the Michigan Law School affirmative action case, Grutter."]

[Update 7 July: Stephen Green joins in, citing John Yoo's comments in Time.]