During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O’Connor—a few short years ago the “most powerful woman in America,” a “majority of one,” the “most powerful person on the court,” and the most “powerful Supreme Court Justice in recent history“—had somehow become the most disregarded. With the court’s newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it’s clear that one real casualty of the new Roberts Court is O’Connor’s lifetime of work on an extraordinary range of constitutional issues.
What can we conclude about the court’s swing voters, about O’Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?
So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O’Connor’s theoretical framework for abortion, campaign finance, and affirmative action. That’s to name just a few. My friend Marty Lederman predicted as much when O’Connor first retired two years ago; still, the speed of it all is proving to be unsettling, if not downright unseemly.
It’s tempting to argue that this is the nature of being the court’s swing vote: You’re too powerful while on the bench, and then you’re obsolete once you retire. I tested this theory this morning on John Jeffries, dean of the University of Virginia law school, a former clerk for famed swing justice Lewis Powell and, later, Powell’s biographer. Jeffries resists the “swing voter” label for either Powell or O’Connor, with its implication that they swung from one ideological pole to the other. He acknowledges that both were at the center of a closely divided court—but in his view, Powell’s work at the high court, perhaps unlike O’Connor’s, has endured.
Case in point? Jeffries offers Powell’s quirky solo concurrence in the 1978 affirmative action decision Regents of the University of California v. Bakke. Powell seemed merely weird when he floated the principle that a university’s interest in producing student-body “diversity” could be a compelling state interest to justify the use of racial preferences in college admissions. Today, his view is the law and a notion many Americans have come to accept as valid. And while the Roberts Court may yet kill it off, O’Connor and a majority of the court kept Powell alive for decades.
As one begins to consider whether O’Connor might be left with no similarly enduring achievements, it’s worth pointing out that some part of this may well be of her own doing: Even at the height of her influence at the high court, O’Connor’s critics tended to deride her constitutional stylings as closer to Muzak than Mozart. Justice Antonin Scalia once famously wrote that her argument in an abortion case “cannot be taken seriously.” And her many critics often pointed to the lack of real rigor in her “undue burden” test for abortion restrictions; her “reasonable observer” test for whether the government has “endorsed” religion; or her “someday my prince will come” test for when affirmative action programs might become unnecessary in the future.
That’s why Charles Krauthammer once wrote of O’Connor that “she had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O’Connor had no stable ideas about constitutional interpretation.” Buried in this criticism was the implication that her legal framework would go easily, once she was replaced by someone with a “serious” constitutional theory. Samuel Alito, her successor, is probably that someone, at least from Krauthammer’s point of view. Certainly no one would suggest calling him a “moderate,” a “pragmatist,” or a “common-law judge.” Alito has an agenda far broader than O’Connor’s one-case-at-a-time approach. It’s hardly surprising that he has not taken up where she left off.
All of which leads me to my own hypothesis about the legacy of swing voters: Their long-term influence on the high court may simply require the presence of yet another swing voter to be sustained. Powell’s vision in Bakke survived Powell’s retirement from the high court only because O’Connor was there to grab his baton in the 2003 University of Michigan cases. In her book The Majesty of the Law, O’Connor noted that Powell “was concerned in every case about the equity at the bottom line—about reaching a fair and just result.” In her view, he was the quintessential common-law judge, and that was the tradition O’Connor most admired and the role she went on to embrace for herself. But now, there’s no one to be their heir. Which means it’s not just O’Connor’s legacy that is rapidly disappearing.
And what about Justice Anthony Kennedy? In theory, he’s the new fifth vote on a sharply divided court—he made the difference in every one of the 24 cases this term that split the justices 5-4. Why wouldn’t he keep O’Connor’s work alive?
Kennedy does not easily fit the shoes of a Powell or an O’Connor. His jurisprudential approach couldn’t be more different from the real-world compromises that pulled them to the middle of the court. In fact, Kennedy often appears to be interested mostly in occupying that center spot for its own sake. He sometimes seems to be using that pivotal fifth vote as a placeholder for more of his hypothetical pivotal fifth votes in the future. O’Connor may well have similarly relished her enormous power at the court’s center. But no one could dispute that she ultimately used it to decide the actual cases before her.
Kennedy’s outsize influence is certainly being felt this term. But if his all-important swing votes—including his decisive, if wholly inscrutable, opinion in the two affirmative action cases from the end of the term—are any indication, his enormous influence may well prove no more enduring than O’Connor’s, albeit for different reasons. Kennedy’s well-meaning efforts to split the difference between two teams of frustrated constitutional purists may soon look as sweet and old-fashioned as Powell’s and O’Connor’s creeping, common-law tradition. In this new era of sweeping political agendas and dramatic, wrenching shifts in the law, there may just be no time or space anymore for small, humble acts of pragmatism.