"Justice O'Connor regrets"

"There is no more eloquent testimony to the evolution of the Republican Party than the ideological fate of the last three Justices to leave the Supreme Court: O'Connor, Souter, and Stevens. In this way, O'Connor's apostasy on Bush v. Gore is a surprise -- but perhaps only because it took so long."

-- Jeffrey Toobin, in a newyorker.com
post, "Justice O'Connor Regrets"

by Ken

I expect you noticed that retired Supreme Court Justice Sandra Day O'Connor recently expressed strong second thoughts about about the dreadful 2000 Bush v. Gore decision, for which she wrote the 5-4 majority opinion that terminated any effort to achieve a more accurate count in the Florida presidential vote and effectively awarded the election to the unelected George W. Bush.

As New Yorker legal correspondent Jeffrey Toobin notes in a new newyorker.com blogpost, "Justice O'Connor Regrets," what she said to the Chicago Tribune editorial board "was not a full-fledged denunciation of the Court's opinion, but it was a decided shift in O'Connor's views." Until now she has consistently defended what Toobin describes as "one of the signature decisions of her judicial career." He notes that "she did so on 'The Daily Show,'" and adds, "I have heard O'Connor defend Bush v. Gore any number of times, at events ranging from law-school convocations to small dinner parties."

"SO WHAT CHANGED?" JEFFREY ASKS

And he answers, "The Republican Party -- O'Connor's Republican Party."

Toobin notes that Justice O'Connor was, at least as of now, the last of the long line of Supreme Court justices to have held elective office. (He cites as examples former California Gov. Earl Warren, former President William H. Taft, and former U.S. Sen. Hugo Black.) Her political experience, he argues, "has always been crucial to understanding her judicial philosophy."

Temperamentally as well as politically, she was a Republican, to be sure, but she was a moderate conservative; even more than Ronald Reagan, the President who appointed her, George H. W. Bush, was O'Connor's ideal President. In the ballot box as well as on the Supreme Court, O'Connor voted for George W. Bush thinking that he would be a President much like his father. (The story of O'Connor's election-night rooting for Bush in 2000 is well-known; I've told it in two books.)

I assume we've all heard the story that O'Connor was so keen to see the younger George Bush "elected" because of her own desire to retire, a plan that would have been problematic if a President Gore had been choosing her replacement. She got her wish, but as so often happens in life, things didn't turn out the way she hoped. The second President Bush "disappointed" her, "to put it mildly."

The story of the last decade or so of her life is the story of her increasing alienation from the modern Republican Party. The key moment for her was the Terri Schiavo case, in 2005, when the President and congressional Republicans mobilized overnight to intervene in the case of a Florida woman who was in a persistent vegetative state, and attempted to overrule her husband's request to remove her feeding tubes. O'Connor, who was at that moment dealing with the descent of her own husband into Alzheimer's disease, was appalled at the fanaticism on display. But largely because of her husband's condition, O'Connor nevertheless announced her departure from the Court later that year -- and gave George W. Bush the chance to put his stamp, and that of the modern Republican Party, on her beloved Court.

In the past seven years, O'Connor has been increasingly clear about her disenchantment with the work of her successors, especially Chief Justice John G. Roberts and Samuel A. Alito, Jr., (who took her seat). She has been harshly critical of the Court's decision in Citizens United, which revolutionized the law of campaign finance. Indeed, her major outside activity since retiring has been to try to persuade states to have a system of appointed, as opposed to elected, judges. A primary reason why O'Connor opposes judicial election is because of the influence of campaign contributions -- which is, of course, precisely the kind of spending allowed by Citizens United.

WHY HAS JUSTICE O'CONNOR GONE PUBLIC?

Toobin even offers a suspicion as to the timing of O'Connor's apparent public change of heart: "because she knows (or suspects) that the Court is about to demolish one of her most important achievements," and "the prospect of a thwarted legacy focusses any retired Justice's mind."

In 2003, O'Connor wrote the majority opinion in Grutter v. Bollinger, which allowed the use of affirmative action in admissions in higher education. The decision was a classic O'Connor compromise: she supported diversity but not quotas; she embraced racial preferences but put a time limit on their use -- twenty-five years. But now, just a decade later, the Court appears poised to undo, or at least limit, O'Connor's decision. In the next month or so, the Justices will decide Fisher v. University of Texas, which is a direct challenge to Grutter.

"O'Connor was not alone," Toobin reminds us, "as a Republican Justice looking on with horror at what her party has become."

The two Justices who left the Court after O'Connor were also Republicans who departed aghast at the modern Republican Party. David Souter and John Paul Stevens were so repulsed by the party of George W. Bush that they gave the most precious gift any Justice can proffer to his successor, Barack Obama -- their seats on the Court. There is no more eloquent testimony to the evolution of the Republican Party than the ideological fate of the last three Justices to leave the Supreme Court: O'Connor, Souter, and Stevens. In this way, O'Connor's apostasy on Bush v. Gore is a surprise -- but perhaps only because it took so long.

#