Here is my “Observe Adam Cohen, Editorial Observer” post for the week. Cohen writes an “Editorial Observer” column for the New York Times, and his column todayon “Why Justice O’Connor Could Be Affirmative Action’s Savior” demonstrates the insight and perceptiveness that we have come to expect from him (little).
He surveys Justice O’Connor’s career, concluding that “[s]he has written a number of decisions that stand out as not merely conservative, but callous.” The “callous” ones were when the good guys lost. Other than hopefully observing that she doesn’t much like principles, Cohen’s method of judicial analysis is to have a scorecard with two columns, good guys and bad guys. By this method, with Cohen keeping score, O’Connor is usually pretty bad, but she’s inconsistent enough that he believes she may ride to the rescue of affirmative action.
Feminist scholars have long scrutinized her legal thinking, looking for a “different voice,” but she has not made it easy. She has sympathized with female plaintiffs, notably a hard-driving woman denied a partnership at Price Waterhouse. But she has turned a deaf ear to others, including a group of blue-collar Ford plant workers challenging a sex-discrimination ruling. For children, she has shown both a soft spot (for student athletes), and a cold heart (for juveniles facing deportation). Some scholars point to cases like these and make the not very flattering argument that Justice O’Connor sympathizes mainly with white, middle-class, up-by-the-bootstraps women
Indeed, much the better question is why O’Connor has approved gender-based plans and but never race-based plans. (See the last chapter of one of my favorite books for details.)
“She has sympathized with female plaintiffs, notably a hard-driving woman denied a partnership at Price Waterhouse. But she has turned a deaf ear to others, including a group of blue-collar Ford plant workers challenging a sex-discrimination ruling”
The NYT editorial observer apparently believes cases should be decided based on who the defendants are rather than the facts of each case. Why am I not surprised?
The NYT editorial observer apparently believes cases should be decided based on who the defendants are rather than the facts of each case. Why am I not surprised?
No, I think they are suggesting that this is Justice O’Connor’s judicial “philosophy”. And, guess what, IT IS! (See link of prev post)
Somewhere in my education I heard the phrase “correlation does not mean causation”. Could that notion apply to an analysis of O’Connor’s decisions?
As I recall, O’Connor faced considerable discrimination when she graduated from Stanford Law School. Though she was at the top of her class, no law firm offered her a professional job. (I believe she was offered secretarial work.)
Yeah, O’Connor was discriminated against after graduating 3rd in her law school class (Rehnquist, CJ finished first). But that doesn’t happen today (trust me, in each of my 3 years of law school, the top student of the graduating class was a women and those women had no problems at all getting a job). Neither does it happen to people who finish near the top of their class, but happen to be a minority.
That is not to say that there is no longer any racism in this country. But surely the affirmative action proponents can see that the US of 2003 is much different from the 50s and 60s, when affirmative action was, arguably, more necessary.