Well, I’m teaching the rights part of con law this semester. O’Connor’s big contribution to constitutional interpretation, I’ve concluded, is try to bolster bad precedents because people have gotten used to them.
Example one: Justice Powell’s opinion for the Court in BAKKE (which he alone agreed with) claimed that educational DIVERSITY trumps the Fourteenth Amendment’s suspicion about every use of race—every decision not to treat persons as individuals and not as members of groups—under the law. There he argues, as Justice Thomas would point out later, that a marginal improvement in the classroom as an educational experience is a State interest compelling enough to trump constitutional principle.
The result, as O’Connor notes in her opinion for the court in GRUTTER v. BOLLINGER: “Public and private universities across the Nation have modeled their own admission programs on Justice Powell’s [rather unique] views on permissible race-conscious policies.” Her strategy in GRUTTER: To make a better [but still lame] case for diversity than Powell did, because of the extremely destabilizing effect of letting the world know he was wrong. So she stuck educational administrators with continuing with the demoralizing task of justifying affirmative action in terms of DIVERSITY, instead of arguing for or against it, more truthfully, in terms of the Constitution’s principles of equality and liberty—in terms of equal justice for all. The irony, of course, is that the argument for DIVERSITY doesn’t claim really to be for the benefit of the individuals who get the preferential treatment.
Example two: In PLANNED PARENTHOOD v. CASEY, she [writing with Kennedy and Souter] managed to uphold “the essential holding of ROE v. WADE” while changing virtually every detail of the Court’s original, exceedingly lame argument. One reason: “A decision to overrule Roe ‘s essential holding . . . would address error, if error there was, at the cost of profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.” The Court’s legitimacy takes precedent over reversal of error, and so some precedents, at least, can’t be reversed “in the absence of the most compelling reason.” A standard stricter than merely compelling—stricter perhaps than beyond all reasonable doubt—is required to reverse ROE.
Another reason: “the cost of . . . [ROE’s] repudiation would fall on those who have relied reasonably on the rule’s continued application . . . [F]or two decades of economic and social developments, people have organized intimate relationships and made choices that defined their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”
Educational administrators got used to diversity, and women have gotten used to the liberty to choose abortion. And that’s enough to make every effort to prop up precedents that have weak to nonexistent constitutional foundations.
It’s amazing the extent to which our ways of taking about abortion and race-conscious policies are indebted to what might be called O’Connor’s enlightened cynicism or nonfoundationalist judicial stateswomanship. ROE, the sophisticated thought now is, might have been judicial activism, but it would now be equally judicial activism to reverse it. And everyone knows that when people in education say DIVERSITY they don’t really mean diversity, but they’ve been taught that it’s constitutional to speak with such mendacity.