Friday, July 01, 2005
So, it's O'Connor first. Rehnquist presumably to follow shortly, and Stevens is no spring chicken. Odds are still President Bush will appoint three Justices to the Supreme Court.
O'Connor was certainly not the worst Justice on this Court, by a long shot. Her style of judging - what's called the common-law style, judging each case on its own merits and letting principles build up from the accumulation of precedent - has its virtues, prominent among them its modesty. The Court, if is follows such a method, is unlikely radically to overturn established practice, far more likely to guide it gently.
But this very virtue is also the characteristic vice of the style, this very modesty its characteristic arrogance. Nowhere is this clearer than in O'Connor's voting-rights jurisprudence. O'Connor has held with precendent that it is permissable and even obligatory to draw Congressional districts with a conscious intent to increase the representation of racial minorities in Congress. But to do so too explicitly, and to create districts with no plausible connection to anything but race, she held, is to cross some unspecified equal-protection line. The practical result of her series of decisions is: to know whether your redistricting passes muster, you have to ask Justice O'Connor. O'Connor's affirmative action jurisprudence is similarly opaque: it's very hard to tell simply by looking at the facts of a program whether O'Connor will find it to traduce the Constitution or to be compatible with it. You just have to ask her.
Pragmatism gets a bad name because it involves the compromise of the truth, or because it is politically craven, or for various other reasons. But these are actually its virtues, and a pragmatism that tried to come up with workable rules would be a pretty good pragmatism. Stephen Breyer sometimes manifests this kind of pragmatism. The real reason to object to legal pragmatism is that its modesty masks a certain arrogance: the arrogance of assuming that the Court, as opposed to the Law, needs to get the last word. Because if the law cannot be articulated, then no one can know whether he is following it, and we are not longer under a government of laws, but of men.
But as I say, there are worse things than O'Connor's style of pragmatism. Kennedy's breathtaking arrogance comes to mind. And I am not convinced that the Court would be well-served by a bench of fire-breathing ideologues, even if they have more principles right than wrong. (Scalia's vote to throw out sentencing guidelines is a good example of how even a principled conservative can wander off into the weeds becaue he feels he has to find a bright-line to draw in all circumstances.)
So here's hoping that President Bush nominates a replacement who has solid conservative legal principles but a pragmatic cast of mind. A conservative version of Stephen Breyer, say. Or, say, someone rather like Chief Justice Rehnquist.