Friday, July 01, 2005

Let the Battle Begin

Sandra Day O'Conner has officially stepped down after nearly 24 years on the high court. Based on the record of the last ten years, one could say, without much hyperbole, that the United States Supreme Court has retired. Indeed, O'Conner's vote was, in more high profile cases than one can count, the only vote that mattered, and practitioners before the court's bar worked until the wee small hours honing their arguments in an effort to capture that single vote.

For conservatives desirous of a court that can finally throw off the mischievious tendencies of the Warren Court -- a legacy whose dead hand has guided SCOTUS jurisprudence for nearly half-a-century -- it is vitally important that the President nominate a jurist who does not believe in the unerring efficacy of the "balancing test." Although we will surely hear much about the future of that constitutional abomination, Roe v. Wade, to my mind, the future of the balancing test is far more important. Although well suited for certain types of judicial inquiry, e.g., abstention, procedural matters, etc., it is a test that is perfectly pernicious in its application to substantive constitutional questions such as establishment clause and cruel and unusual punishment cases. In short, the balancing test (or factor-based analysis) is an invitation, if not a command, for Justices to supplant the will of elected officials with their own opinions of how civil society should be structured and regulated.

O'Conner's retirement removes from the picture the ostensibly "conservative" Justice perhaps most prone to falling prey to the intellectual laziness inherent in application of the various balancing tests. It is duly noted, though, that, during the course of this last term, Justice Kennedy has given O'Conner quite a run for her money and, going forward, may well prove an even greater impediment to the renewed ascendency of rigorous judicial inquiry.

I respect O'Conner and, in the main, believe she has aquitted herself well on the Court. That conclusion, though, is premised on the fact that the vast majority of cases reaching the Court do not implicate the constitutional issues that so capture the attention of an ill-prepared public. With regard to that small subset of the Court's work, O'Conner's tenure has been marginal at best, and a disaster at worst. With any luck, the President will nominate a successor who will be as effective as O'Conner with regard to the real core of the Court's work, and far more effective with regard to the high-profile constitutional cases.

Lastly, do note that, just before the end of the October 2004 Term, the Court accepted for review Ayotte v. Planned Parenthood of Northern New England (04-1144), a case in which the issue presented is whether the 1st Circuit erred when it struck down New Hampshire's parental notification law as unconstitutional . . .

Ongoing discussions at:

How Appealing
The Conspiracy
The Corner

Follow the battle at the SCOTUS Nomination Blog and Confirm Them.