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Friday, December 07, 2007

O'Connor, Kennedy, and Reputation

Edward Lazarus's Findlaw column this week discusses Justice Kennedy's reputation and suggests that he has taken a hit in part because of nostalgia for Justice O'Connor.  Further, he points to Justice O'Connor's jurisprudence in arguing that the nostalgia is more widespread than deserved.
I agree that Justice O'Connor has received kid-glove treatment, though I am less sure that critics have been meaner to Justice Kennedy because of it.  It seems to me that there are a few factors at play here that combine to create the odd difference in treatment the two Justices have received.
First, Justice O'Connor's still-recent retirement naturally leads people to go easy on her.  My sense is that recent retirees are granted more deference than ones who left the Court long ago, and certainly more than are Justices who are still serving.  Kennedy receives criticism now in part because he is the moderate who still matters.
Second, Justice O'Connor's status as the first woman on the Court makes it easy to praise her.  I cannot imagine that she would be receiving the praise that she gets from the country if she were male.  Though of course the notoriety that goes along with her appointment focuses good and bad attention on her, some may back off of criticizing her and her appointment for fear of appearing biased, and even those who object to her jurisprudence can always applaud her "trailblazing" accomplishments.  (Yes, some actually biased commentators might focus more criticism at Justice O'Connor because of her sex, but it seems to me that such criticism is especially unlikely from the mainstream media and "the left," on which Lazarus seems to focus in noting the recent praise of Justice O'Connor.)
Third, and, I think, most important, her case-specific way of deciding cases tends to lead to outcomes that are acceptable to her and, because of her general political moderation in the areas of greatest public salience, to most Americans.  Journalists, politicians, and the public do not care about the jurisprudential problems created by Justice O'Connor's approach, and the theoretical inconsistency and idiosynchratic subjectivity that so characterize her decisions are of no concern to people who do not have to apply them.  We've seen plenty of instances of praise for Chief Justice Warren's approach of seeing through the law to achieving the right moral result, and similarly Justice Stewart continues to receive praise from politicians, including Senator Kerry in the 2004 campaign, despite the inconsistency and subjectivity that appear in his opinions.  I think praise for Justice O'Connor is another species of that phenomenon.  Justice Kennedy, because his opinions are more apt to produce outcomes out of step with public opinion, is unlikely to receive such praise, and he receives plenty of criticism from partisans of both the left and the right as well as from people who object to his decisions on jurisprudential grounds.
Fourth, and relatedly, the nostalgia is felt, as Lazarus says, mainly by "the left."  It should come as no surprise that liberals would prefer to have on the court a "swing vote" who is apt to swing their way more often than will the current one.
In no way, however, should we take any of the priase to mean that Justice O'Connor was a better judge.

Posted by Michael Dimino on December 7, 2007 at 02:15 PM in Law and Politics | Permalink

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