Before we engage in battle over Sandra Day O’Connor’s successor, we should first take a moment to correct the media’s bandwagon eulogy of Madam Justice as a retiring queen of judicial judiciousness.
The New York Times, for instance, in a representative piece labeled “News analysis,” portrays O’Connor as the Court’s admirable voice of objectivity. Intones the Times, “Justice O’Connor warned that judges should be wary of overreacting” to passions of the moment, quoting one of her 1995 opinions to illustrate: “Some crises are quite real” and some are less so. “The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone.”
Five years later O’Connor had the opportunity of a long career to prove that she really meant it. But when push came to shove, she did not. And to this, the most important decision she was ever to make, the Times devoted all of two sentences within its 2000-word “analysis,” writing that “The most famous, or notorious, 5-to-4 opinion in 2000 was, of course, Bush v. Gore, which ended the Florida recount and effectively called the presidential election for George W. Bush. Justice O’Connor joined the unsigned opinion that declared the conditions of the recount to violate the constitutional guarantee of equal protection.”
End of that story, let’s move on, declares the Times in effect. There’s fair-and-balanced praising to be done, so let’s soft-pedal that infamous decision that put an unelected bamboozler into the White House, who will now appoint the queenly king maker’s successor.
Yet whether or not the mainstream media acknowledge it, Bush v. Gore represents the illicit ground zero of O’Connor’s career, the dark hole of ultimate malpractice, and thus her legacy -- because there’s no getting around the simple fact that her 2000 vote was monumentally corrupt.
The weight of outside legal opinion on Bush v. Gore was crushing in its uniform hostility. Scholars knew what a banana-republic court would do, but trusted the highest court in this lawful land would not. Writing for the principled and vast majority of professional opinion, law professor Donald Wilkes has nicely summarized the Court’s dishonest gyrations, in which O’Connor was the deciding gyrator: “The Court has insisted that unequal treatment cannot constitute a violation of the equal protection clause unless it is done purposefully, and the five justices who joined in Bush v. Gore regularly vote to deny equal protection claims. Yet in Bush v. Gore these same five justices based their decision in favor of Bush on a novel, expansive interpretation of the equal protection clause, and did so despite the absence of any allegation or proof that the unequal treatment complained of was purposeful.”
David Strauss, also a professor of law, has written that “the majority’s decision appears to be simply indefensible…. The majority opinion insisted that its rationale was to be applied, essentially, only in this case -- basically conceding that the result, not the legal principle, dictated the outcome.” And the “result,” of course, was a wholly partisan declaration.
Another law professor, Michael J. Klarman, has likewise agreed: “I cannot think of another Supreme Court decision about which one can say with … confidence that reversing the parties, and nothing else, would have changed the result.” Perhaps the bluntest was noted prosecutor Vincent Bugliosi: “The Court committed the unpardonable sin of being a knowing surrogate for the Republican party.”
I’d like to think Mr. Bugliosi intended his lower-case “party” as a scathing double entendre, but either way, the decision’s ramifications have been, for sure, no party for the country at large.
In every instance it is the black deed that colors a luminary’s historical legacy: Richard Nixon shall forever be defined by Watergate, Lyndon Johnson by Vietnam, Roger Taney by Dred Scott, and so on. Sandra Day O’Connor, on purely partisan ground, deliberately upended democracy and ordered the White House keys into the hands of an unelected, bumbling governor who would soon graduate from bumbling to bedlam. That deed secures for O’Connor her own black legacy.
