I feel a little guilty about jumping into all the speculation about who's going to replace Sandra Day O'Connor on the Supreme Court without going through a stage of respectful celebration of the grand judge.
Was that wrong? Is it like reacting to news of your husband's death by talking about your dating prospects? Or is it a healthy focus on the future? Or is it just exactly the response the Justices themselves have earned by holding their seats so long and not giving us the new-Justice experience often enough?
But do I feel like celebrating judges? I have spent my entire professional career trying to understand the writings of Justice O'Connor, who became a Supreme Court Justice in 1981, the year I graduated from law school. I remember having a conversation with my father about President Reagan's promise to appoint the first woman to the Supreme Court. Even though I hadn't been a Reagan supporter, I believed the promise. My father, who seemed to think it was his job to teach me to be cynical, assured me Reagan was going to appoint William Bradford Reynolds. I was glad to have a woman Justice at last -- and simultaneously, to beat my father (and his cynicism) in an argument.
When I started teaching law school, the first case I spent a lot of time thinking about, as I developed an interest in federalism, was the 1983 case of Michigan v. Long, for which O'Connor wrote the majority opinion. (Long is a case that presages Bush v. Gore: despite the dissenting Justice's pleas for federalism-based deference to state courts, the Court finds reason to review and reverse.) I have spent many, many hours poring over O'Connor opinions: she was the key voice in the Court's writing about federalism in the early 90s, before federalism became a more central concern for the Court.
Three cases that were important in the development of the Supreme Court's federalism and written by O'Connor were in New York v. United States (1992), Gregory v. Ashcroft (1991), and Coleman v. Thompson (1991). Coleman begins with the line: "This is a case about federalism." (It should be noted that Gregory, the oldest of this trio of cases, cites and relies on the ideas in Michael McConnell's brilliant article Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484 (1987), just one of the many reasons McConnell belongs in the seat O'Connor is vacating.)
But I've spent too much of my life puzzling over O'Connor opinions to go into celebration mode. I like all the Supreme Court Justices well enough. I have defended each one of them in turn when I've heard them scoffed at or criticized too sharply. They have a hard job, and they do it diligently for the most part. But they must love their work, for whatever reasons, to keep at it as long as they do. They are human beings, and we need to rely on human beings to do the work of government. The Justices, like all human beings, have their weaknesses, and I assume one reason they hold their jobs as long as they do is that they enjoy the power and the prestige. Instinctively, I resist heroizing people who have that much power. We need to watch the powerful closely to see if they abuse their power. It's just not in me to love and admire these people. My thoughts about a retiring Justice are about the work that he or she did. I've been reading and writing and talking about this person's writings for years, and now the final case has been written. The oeuvre of Sandra Day O'Connor is complete.
I was struck by this article in Reason, interviewing various people about who their "favorite Justice" is. (Those who clerked for a Supreme Court Justice and picked "their" Justice -- well, isn't that like having your favorite song be the song that was playing the first time you had sex? It's just not information for me about whether it was a good song. But how nice for you.) Reading the Reason article, I realized that it doesn't come naturally to me at all to think in terms of a "favorite Justice." I'd be hard pressed to tell you who appeals to me the most in the current group or in the larger historical group. There isn't enough direct expression of an individual in a Supreme Court opinion to reach out to me and win favor for the person. And there really shouldn't be. The opinions represent groups and are written to interpret and accord with texts. One can discern a certain style of reasoning in each of the Justices, certain sympathies and weaknesses, and these things are helpful in understanding the cases, but in the end Supreme Court Justices are pretty gray characters.
Still, Sandra Day O'Connor was one of the most colorful. I loved reading the very colorful story of her life growing up on a cattle ranch. I'm sure she's a fine person and I appreciate the work she's done for us. So thanks and goodbye, Justice O'Connor.