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.Lithwick abandons this theory when presented with a counterexample. (Justice Powell's idea for premising affirmative action on "diversity," which seemed "weird" at the time of Bakke.)
So maybe it's something about the way O'Connor's did her swing voting:
... 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.What Krauthammer calls "stable ideas about constitutional interpretation," Lithwick calls an "agenda."
IN THE COMMENTS: Our house troll says -- among assorted insults:
Krauthammer, huh? Now THERE'S a legal scholar.I'm pleased to get the push to respond to that:
Yes, chosen by LITHWICK to illustrate the side of the argument she wanted to minimize. On the liberal side, she chose to quote the dean of a top ten law school. So who's doing law in a bluntly political way: me or Lithwick? The answer is obvious.