Odd Ends And Bits Re O’Connor

Looking at the crescendo of comment about Justice O’Connor’s resignation, I’m struck by how much ideology — and very revealing ideology at that — can be crammed into brief snippets of comment and observation. A few examples from today’s Washington Post:

From an editorial, “The O’Connor Court”:

Allergic to the sort of broad principles that excite more ideological justices of both the left and right, her opinions generally lacked lively or stirring rhetoric. Her instincts were pragmatic. She had a pronounced tendency to decide cases on their facts, leaving herself room to shift gears when facts were different.

… and the same point from columnist E.J. Dionne’s column, “Practical Voice for Partisan Times”:

… unlike O’Connor, who liked her decisions very particular, the new conservatives love sweeping abstractions. To them, a case-by-case approach is as unprincipled as it is unexciting.

I consulted [University of Chicago law professor Cass] Sunstein because he is the author of “One Case at a Time: Judicial Minimalism on the Supreme Court,” a book in which O’Connor is the hero. “What has made her distinctive is that she’s the court’s minimalist,” Sunstein said. “She likes narrow rather than broad rulings, and dislikes abstract theories. She goes one case at a time. She’s interested in particular facts, in particular cases, so she’s been a judge’s judge rather than a theorist of any kind.”

What is nicely revealed here (and, of course, elsewhere), and almost breathtaking in its scope, is the degree to which modern liberalism has rejected principles (“broad” or otherwise), which are dismissed as “sweeping abstractions” or “abstract theories.” Read or listen to enough of this “pragmatic” minimalism and you’re likely to lose sight of the fact that we have a Constitution whose essence resides in its “sweeping abstractions.” Constitutions, when honored, can be very inconvenient to presidents and legislators and, yes, judges, who would prefer to operate on the assumption that their view of “the facts” is all that really matters.

And while I’m at it, let me add that no cases are ever decided “on their facts.” Facts are always filtered and evaluated according to some principle. Principles constrain, whether they are “abstract theories” or the determination to follow concrete common law precedent or legislative intent. A judge who decides cases “on their facts” is, most of the time, simply picking and choosing the principle that will lead to the outcome he — or in O’Connor’s case, she — prefers, with no obligation to be consistent from “case to case.”

Dionne also writes that on the right

[t]here is not simply an eagerness to strike down precedent, notably Roe v. Wade . There is also — in what has come to be known as the movement for “the Constitution in Exile” — a desire to roll back most of the developments in jurisprudence since the early 1930s. This movement would strike down the regulatory state created during and since the New Deal.

I think this fear of a cabal of conservatives waiting in the wings to impose a “Constitution in Exile” is overheated and extreme, but what is more noteworthy, and typical, in Dionne’s statement above is the assumption it embodies that the New Deal regulatory state — which by definition was created by the New Deal and did not exist before — has somehow become part of the Constitutional order, that it is literally unconstitutional to tamper with it. Purists may wonder how all those regulatory agencies, etc., were silently and without benefit of amendment written into the Constitution, but if so they can find answers in the writings of liberal legal academics such as Bruce Ackerman at Yale, with his famous “constitutional moments.” (See here for a summary of some of this literature.)

Dionne (a very useful barometer) also writes, still in the same column, that the real battle ahead is not over Roe but

over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights.

Substitute “discriminate on the basis of race” for “affirmative action,” substitute “restrict purely political speech” for “campaign finance,” and, switching only a bit, substitute “take the homes of poor people and hand them over to large corporations” for “environmental regulation,” and then ask yourself how many liberals would then favor the judicial “minimalism” that is now all the rage among liberals.

And now (finally!) that we’ve gotten to affirmative action, it would also be in order to ask those minimalist liberals who favor judicial deference to legislative determination how they square their new sympathy for what Alexander Bickel called “the passive virtues” with their support for judges and opinions of which they approve (most recently, O’Connor in Grutter) disregarding the clear language and intent of the 1964 Civil Rights Act, which prohibited imposing burdens on any person in the United States on the basis of race. (I’ve quoted Title VI over and over again, such as here.)

Moving on (as they say), this from Dan Balz’s “Analysis” article on the front page:

For more than three decades, the right has been ascendant in America.

Really? Three decades? Since before 1975? How much before 1975? That is, when exactly did the right become ascendant? I know we can’t expect journalists to be historians, but this seems a bit extreme, even given the latitude allowed by “analysis.”

From a profile of possible nominee Michael McConnell by WaPo legal writer Charles Lane:

Conservatives like his writings favoring government “neutrality” toward religion.

Hmm. If conservatives like “neutrality” toward religion, you can be sure that liberals don’t. But if they don’t want religion to be treated neutrally, that would seem to leave only two possibilities: favorably and unfavorably. Maybe in the future Lane could tell us which approach he thinks liberals favor.