O'Connor

Another Rice Grad is right, I do agree with this description of Justice O'Connor:

The question to ask is should she be the most powerful woman in American history? Should we have an unelected person making these final decisions for American society on a lot of these different questions? And it's true she is a moderate in the sense that she likes to be in the middle. But the problem with that is that makes her very politically powerful. The problem is that she doesn't have any real judicial ideology. She doesn't really have a consistent theory that she brings to the law, she just likes to, I think, be in the middle, to be in the center of a court that's fairly polarized, that makes her the center of attention, people craft arguments at the Supreme Court to appeal just to her. But that isn't really law, is it, that's more politics. It deprives the court of speaking with a consistent, coherent judicial ideology.

I think some of this came across in my criticism of her Grutter opinion last year, and I felt the same way about her "split the difference" approach in her Lawrence concurrence. There is an unfortunate extent to which I think O'Connor has hijacked the court in a way that "swing voters" in the past (think Stewart in the 60s, White in the 70s) never tried. Because she is so fond of what I call splitting-the-difference (even when there is no defensible precedent or legal theory for ending up in a compromised and muddled position; e.g. think of her 30 years compromise on affirmative action), she is leaving us particularly worse off. The country has a hard enough time reacting to split decisions that may go the other way as soon as a justice retires, and there is not much to do about that. But O'Connor's obsession with carving out the smallest possible ruling almost guarantees a lack of guidance and endurance for her opinions, and betrays the hope that our justices are at least guided, if clearly not controlled, by something other than political preferences.