Original Intent and Sandra Day O'Conner

The news seems to be all over the idea that Sandra Day O'Conner was a) a unifying force for the Supreme Court or b) a conservative. Clearly, not both of those judgments can be correct. But as I reflected on her 24 years on the bench the more I reviewed the decisions where she had a major impact the more I see the folly of not looking for someone with original intent in mind.

Should the Constitution be able to change with the times - what about writing a document when there were no corporations or internet or fast food or any other contrivance? Obviously, with a little thought about it we can bring the Constitution up to modern times when we do not think it is working right - we've done it 27 times. Now some are trying to make it 28 with the flag amendment (which I personally think is silly). Madison argued persuasively in Federalist #10 to avoid the "passions of the people" - unfortunately a lot of what has passed for clear thinking on the court in recent years has not done that.

In Grutter - Justice O'Conner argued that affirmative action may be troubling to the equal protection clause but we need to keep it in place for another 25 years to assure ourselves that racism has been expunged. What is the logical indicator in 25 years that will be used to test whether we have met our match? Will it change over time?

In Grutter she said ""We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to 'sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society. This court has long recognized that 'education is the very foundation of good citizenship.' For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. . . .
"We take the law school at its word that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
The motive is noble but the long term consequences of chasing a principle not properly grounded in the Constitution is also wrong.

Her comments in First amendment cases have been particularly troubling. The Establishment clause has been interpreted in modern terms far beyond its intent. I believe to the detriment of religious practice. Does the country bound itself on religious principles that a primarily Judeo-Christian? Absolutely. Should religious institutions be getting support to advance their religious goals. No. But what is the harm in allowing some recognition in public places for religious principles? In both the Texas and Kentucky decisions (where Bryer switched his vote for no apparent logical principle) O'Conner voted no. In a 1984 case (Lynch) she wrote in a concurring opinion "Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message." But clearly if we were founded on the base principles they should be recognized in public discussions - not to bring adherents or to embarass non-believers but more to recognize the fundamental founding principles of our nation.

In the recent stretch that the court went through on eminent domain Justice O'Conner caught the very essence of the issue - which unfortunately was missed by the majority. She commented "As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. 'That alone is a just government,' wrote James Madison, 'which impartially secures to every man, whatever is his own."

I hope the President finds someone who is a bit less political and a bit more intent on not trying to find a minimum winning coalition which Justice O'Conner did well in the legislative process - but to adhere to a clear understanding of principles. A good many of the cases the Court is asked to decide are "tweeners" but as I reflected on Justice O'Conner's long history on the court her luck with those issues was spotty at best.