It is now all but certain that this will be the last week Justice Sandra Day O'Connor will hear oral arguments and announce opinions from the bench of the Supreme Court of the United States.  After this week, the Court will recess for four weeks, until the day after Presidents' Day, when the Court will again reconvene, almost certainly with a new member, Samuel Alito, Jr., who will take the seat vacated by Justice O'Connor.  Thus, it was particularly fitting when, on Wednesday morning, Justice O'Connor announced the opinion of the Court in Ayotte v. Planned Parenthood of Northern New England, No. 04-1144.

It wasn't that the Ayotte decision could be Justice O'Connor's last that made it noteworthy.  Nor was it that the Ayotte decision was the Supreme Court's first on abortion in more than five years.  In fact, it wasn't what Justice O'Connor said or decided in Ayotte, rather it was what she didn't say or decide.  In ten pages, which Washington Post reporter William Branigin said "broke no new ground on abortion," the decision set forth the judicial philosophy Justice O'Connor has adhered to for nearly a quarter century -- decisive indecision.

Take the description of the opinion offered by veteran Supreme Court reporter Lyle Denniston: "The ruling ... did not clarify whether abortion restrictions must always have a health exception (in non-emergency situations), it did not settle whether abortion laws' constitutionality will be judged by a different standard than other laws ... In some ways, the opinion seemed to reveal a collective decision by Justices ... to suspend their disagreement until some future occasion ... By no means, however, did it bridge the existing fundamental disagreements among the Court's members in this field of law."

Sure, Justice O'Connor's decision provided disposition of the case, but it answered none of the legal questions posed by the High Court when it decided to hear the Ayotte case.  Back then, late last May, the Court asked the parties to brief two issues: (1) whether an abortion statute is unconstitutional if it could impose an "undue burden" on someone, somewhere, sometime, as opposed to only when there is "no set of circumstances" to which the law can be constitutionally applied (as is the general rule for striking down statutes); and (2) whether abortion regulations must always explicitly include an exception for the life and health of the mother to withstand constitutional challenge.

But Justice O'Connor dispensed with those questions from the very beginning, and instead decided the case on the much narrower, more technical grounds that the court below had gone too far by striking down the entire statute.  Since such a broad remedy was unnecessary, according to Justice O'Connor, the case simply had to be sent back to the lower court for those judges to decide what to do next.  Winner picked, constitutional problem solved (or avoided), at least for now.

But how frustrating, not only for the parties who had filed briefs and presented oral arguments, but also for those lower court judges and the countless others across the country who will have to decide this case and others based on no more instructions than they had the day before, with the exception of the caveat that they should not strike down the entire statute.  In other words, as with many of her other middling minimalist constitutional compromises, Justice O'Connor was willing to pick a winner in Ayotte, just not a rule to apply in future cases.

This, indeed, is Justice O'Connor's legacy.  In perennially exercising the swing vote, yet rarely establishing bright-line constitutional rules, Justice O'Connor has raised more questions than she has answered by leaving the meaning of the Constitution endlessly open to new interpretation based on different facts and circumstances.  Now with her departure, the Court will answer a far more important question than those she avoided -- whether the High Court will provide clear constitutional rules for the lower courts and the whole country to follow by making Ayotte its last decisive indecision.