Dahlia Lithwick wrote in Slate Magazine How Sandra Day O'Connor became the least powerful jurist in America.
She left. Duh.During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded.
Should they have ignored the law just to let a former justice's opinion prevail.With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues. What can we conclude about the court's swing voters, about O'Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?
That is the priblem with having judges legislate, When they are gone, their effect is gone. What should happen is that the Legislative Brahch should legislate, and the Judicial branch should JUDGE.So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O'Connor's theoretical framework for abortion, campaign finance, and affirmative action.
A justice should not have a theoretical framework for anywhing. The theoretical framework they work with is the laws passed by the legislature, and howmthey comport with the Constitution.That's to name just a few. My friend Marty Lederman predicted as much when O'Connor first retired two years ago; still, the speed of it all is proving to be unsettling, if not downright unseemly.