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O'CONNOR AND POWELL MADE THE SAME MISTAKE.
Power Surge
by William J. Stuntz Only at TNR Online
Post date: 07.02.05
Retiring Supreme Court justices have a rare privilege: They get to read their own eulogies. Eulogizing Sandra Day O'Connor is the fashion of the moment in Washington. Kind words flow like rivers, and from some surprising places. It's eerily reminiscent of another judicial retirement eighteen summers ago when Lewis Powell ended his fifteen-year tenure on the Court.
Powell and O'Connor overlapped for six years, and by all accounts they hit it off big. They seemed to have little in common. He was a traditionalist son of the upper-crust white South. She was a breaker of barriers from Arizona's ranchlands. Yet they were a perfect match. Both were split-the-difference judges. Both liked standards better than rules. Both were passionate about federalism (a common enough passion today, but that wasn't so when Powell and O'Connor joined the Court). Both were instinctive conservatives who nevertheless honored liberal precedents. Powell would have dissented in Miranda v. Arizona, decided six years before he joined the Court. But when given the chance to overturn Miranda, he opted instead to trim around its edges. O'Connor's relationship with Roe v. Wade has been similar. Predictably, both attracted a lot of praise from liberal journalists. Powell's resignation triggered a love-fest in the mainstream media. O'Connor seems certain to get equally friendly treatment.
One more similarity is worth noting, and it's one that should give pause in the midst of all the praise. If Powell and O'Connor had a single defining characteristic as judges, it was this: Both were very comfortable--too much so--exercising power.
I don't think they started out that way. I clerked for Powell his next-to-last year on the Court, and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. I don't know Justice O'Connor, so I can't swear that she felt in 1981 the way Powell felt in 1972. But I bet she did. As with Powell, you can see it in her opinions in the early 1980s: the tentativeness, the discomfort with hurling judicial thunderbolts.
But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it. O'Connor's has been the decisive voice on all those subjects, plus federalism and much of the law of criminal procedure. In Bush v. Gore, she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century. For all the talk about O'Connor's lawyerly virtues--people said the same thing about Powell--Bush v. Gore shows that (as my Harvard Law School colleague Heather Gerken likes to say) she is more politician than lawyer. So was Powell. His legal views were shaped by his experience on the Richmond School Board during the 1950s. Hers were shaped by her time in the Arizona legislature in the '70s.
Political life is all about power: getting it, holding it, using it. Success in that world--and O'Connor and Powell succeeded at everything they did--does not tend to breed self-restraint. More nearly the opposite.
But self-restraint lies at the heart of good judging. And its absence is the central problem facing today's Supreme Court. Appellate judges--Supreme Court justices in particular--exercise an astonishing degree of power over American governance and political life, a good deal more than is healthy in a democracy. How did it happen? The temptation is to say it must be the ideologues, the judicial true believers on the right and on the left: the Brennans and Marshalls and Rehnquists and Scalias. But mostly, I think it has been justices like Powell and O'Connor deciding, case by case, what the right result is--and then commanding that the rest of us live by it.
O'Connor's confirmation was a cakewalk: 99-0. With only one negative vote, Powell's was almost as easy. Powell's would-be successors--it took three nominations to get one confirmed--had a harder road. O'Connor's replacement seems likely to trigger a Bork-like battle. The ease (or not) of confirmations is a rough measure of the Court's power. Today, that power is great; the stakes are high. Too many rules about which too many people care intensely will stand or fall depending on which way the next swing vote swings. What is most needed is to lower the stakes, to make the Court less powerful, so that politicians will not be so quick to go to the mattresses with every appointment. To do that, we need justices who start out as O'Connor and Powell did--and stay that way.
.Kathianne said:This is really too long to post and too intricate to give just a blurb on. If you are interested in the judicial appointments and coming fight, it's a must read.
http://www.city-journal.org/html/12_3_why_the_battle.html
