There wasn't enough room on the front pages of many — dare we say most — newspapers Wednesday for all the news, including a proper acknowledgment of and farewell to Justice Sandra Day O'Connor.  Dwarfed by President George W. Bush's State of the Union address... A Farewell to Justice O'Connor

There wasn't enough room on the front pages of many -- dare we say most -- newspapers Wednesday for all the news, including a proper acknowledgment of and farewell to Justice Sandra Day O'Connor.  Dwarfed by President George W. Bush's State of the Union address, Justice Samuel Alito's confirmation and the passing of Coretta Scott King, the retirement of the first woman to sit on the highest court in the land was buried in the body copy of stories focusing on the Supreme Court's new justice.

It is true that we have not always agreed with Justice O'Connor's ad hoc constitutional jurisprudence.  Indeed, in two landmark cases in recent terms we still wish Justice O'Connor had voted in favor of the position we advanced in the High Court.  After all, if she had, our Constitution finally would have fulfilled its promise of being colorblind, and "We the People" would have reclaimed the freedom of speech taken from us by some of our elected representatives who care more about keeping their seats then hearing from their constituents.

Thus, in Grutter v. Bollinger, one of the University of Michigan affirmative action cases, Justice O'Connor was unwilling to make race constitutionally off-limits once and for all.  Instead, Justice O'Connor observed that America might be colorblind one day but, until then, our Constitution did not need to be.  Likewise, in McConnell v. Federal Election Commission, Justice O'Connor's view of the constitutional command that "Congress shall make no law ... abridging the freedom of speech" -- especially political speech -- was obscured by the cloud created by the appearance of corruption.

But Justice O'Connor's world is blurred in grays rather than marked by black and white, and so she was unwilling to embrace constitutional absolutes.  This does not mean her legacy is one to be lamented, rather it helps explain one area of her jurisprudence where she deserves the highest praise.  In fact, perhaps it was those grays that led Justice O'Connor to second guess how much power the federal government should be able to exercise over the states.

Despite the deserved acknowledgement of the late Chief Justice William Rehnquist's leadership of the federalism revolution, it was Justice O'Connor who made constitutional limits on federal power a reality again.  And, unlike anyone else on the Supreme Court, Justice O'Connor knew first-hand why federalism is important.

Justice O'Connor arrived at the Supreme Court not after honing her skills as a federal appeals court judge or as a high-ranking federal Justice Department official, but rather after being a state Senator, state trial judge and a state appeals court judge.  In each pre-High Court position, Justice O'Connor focused on local problems and state law -- not on singular national solutions.  In other words, through her own practical experience, Justice O'Connor knew that decisions could be made somewhere other than Washington, D.C., and those decisions could be just as valid and needed to be respected just as highly as those made in our nation's capital.

What's more, seeing the world in grays predisposed Justice O'Connor to see legal "diversity" and experimentation among the states as something to be encouraged rather than avoided.  This predisposition was only confirmed by the U.S. Constitution, which explicitly limited the reach of the federal government, reserving power for the separate states.

In other words, the very thing we have complained most about Justice O'Connor -- her disdain for singular absolutes -- also explains why she prevented the federal government from imposing national standards when the states were constitutionally entitled to enact their own.  We bid Justice O'Connor a fond farewell and hope the current justices don't fail to see the Constitution's grays, especially as the federal government reaches further and further into our daily lives in black and white.

February 2, 2006
[About CFIF]  [Freedom Line]  [Legal Issues]  [Legislative Issues]  [We The People]  [Donate]  [Home]  [Search]  [Site Map]
� 2000 Center For Individual Freedom, All Rights Reserved. CFIF Privacy Statement
Designed by Wordmarque Design Associates
Legal Issues News Protection for individual freedom provided by the rule of law news Educating the public through legal commentary news Latest legal issues affecting individual freedoms news Official legal websites news Supreme Court Docket Summary By Thomas Goldstein news Humorous court case news