O'Connor Retires

As I've said several times, I take the Constitution literally, as not meaning anything more or less than it says. I'm not a fan of the "doctrine of incorporation," in which the Supreme Court decides to apply provisions of the Bill of Rights to the states. The Constitution is a political charter, and the Court is a product of it; the people, not the court, are the supreme interpreter of it. In short, I refuse to pretend that my libertarian preferences should be Constitutional law, any more than conservative or liberal preferences. Justices should resolve conflicts of law, not conflicts with the Constitution - Constitutional conflicts are fundamentally political and should be resolved by political branches of government. By my standard, I'm hardly a fan of any Supreme Court Justice, although I'm partial to conservatives in one sense. If libertarians ever took power in the states and the federal government, conservatives would be unlikely to sabatoge the agenda. Liberals are more likely to concoct a "constitutional right" to public education, force local districts to raise taxes, and otherwise wreak havoc.

With all of those caveats, my brief assessment - not being a court watcher - of Sandra Day O'Connor's record is that her "moderation" and "consensus-building" were really more or less sincere efforts to balance states' rights and individual rights. Here concurring opinion in Lawrence v. Texas, which struck down Texas's anti-homosexual sodomy law may be a case in point. She ruled with the majority in Bowers v. Hardwicke, the 1986 decision that upheld the right of states to prohibit sodomy. The distinction, O'Connor wrote,

The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct–and only that conduct–subject to criminal sanction.

Just because a Justice is not a liberal (abortion rights must always be upheld without exception) or conservative (affirmative action policies must ALWAYS be struck down), does not mean that she is a confused, unprincipled, or a poor reasoner. Yes, she may have flip-flopped and been too sensitive to public opinion, but perhaps also was better able to recognize the heap of unconstitutionality (or at least of injustice) beyond the relentless logic of precedents and philosophy.