How do you like them apples O'Connor, J.? After she leaves court, SOC has sour grapes

October 13th, 2009

From Bloomberg News, H/T How Appealing:

Asked whether it concerns her [Justice O’Connor] when the U.S. Supreme Court rules differently than she would have, the retired justice said this:

“What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear,’” O’Connor said. “Life goes on,” O’Connor told her audience. “It’s not always positive.”

Jeffrey Toobin calls Justice O’Connor the most powerful woman in the world for much of the 1980s and 1990s. As the swing vote on the Supreme Court, she could single-handedly determine outcomes of cases. She relished this role, and only reluctantly retired due to her husband’s tragic illness.

It is to be expected that she feels remiss that her precedents are being dismantled. But she should not be surprised. Her jurisprudence was not based on formalist or objective understands of the law. Rather, she tried to measure the pulse of society, and tethered the Supreme Court’s jurisprudence closely to this sense. After she leaves the court, and the country shifts politically, shouldn’t her own philosophy endorse her precedents being dismantled?

I’m reminded of a classic scene from Good Will Hunting.