Friday, July 08, 2005

Charles Krauthammer sums up what was wrong with O'Connor's approach to the law - she was too much of a legislator.
Perhaps the most telling moment of Sandra Day O'Connor's nearly quarter-century career on the Supreme Court came on her last day. In her opinion on the Kentucky Ten Commandments case, O'Connor wrote that, given religious strife raging around the world and America's success in resolving religious differences, why would we "renegotiate the boundaries between church and state. . . . Why would we trade a system that has served us so well for one that has served others so poorly?"

This is O'Connorism in its purest essence. 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. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

But that, of course, is the job of the elected branches of government. Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: whether the "system" the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?

O'Connor says that America has negotiated church-state boundaries so successfully that we should not rock the boat. But we went 170 years allowing school prayer and other kinds of public religious expression. Then, from 1960 on, we changed course and systematically stripped religion from the public square. In neither era -- school prayer or post-school prayer -- was this country particularly given to jihad or pogroms. How, then, does history recommend one negotiated boundary over the other?
Some people now recommend that we have justices on the Supreme Court who have had some political background, but the danger in the at lies in their tendencies to act like legislators rather than interpreters of the Constitution. We can vote against legislators that we don't like, but we have no tool to use against justices we don't like. That is why they must leave the law-making to those who will come before the electorate.