O'Connor didn't 'swing,' she listened

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I'd never heard of Sandra Day O'Connor when the news broke that she was President Ronald Reagan's likely nominee for the new vacancy on the Supreme Court. This was in 1981, toward the end of my term as a law clerk for Justice Thurgood Marshall, and a bunch of us crowded around the one Lexis terminal in the court library — yes, one, and yes, a terminal — in hope of tracking down some of her opinions.

We didn't find much. Certainly we found nothing to indicate that she would become one of the most honored and beloved justices in the court's history.

O'Connor, who died on Friday at the age of 93, has been lauded as a role model (true), a writer of crisp and clear opinions (also true), and a warm and decent human being (true a third time). She's also been applauded as the swing vote of Chief Justice William Rehnquist's court — and there, I think, the praise misses a larger point about both O'Connor herself and the nature of the institution she once graced.

Yes, O'Connor did join a lot of 5-4 majorities. But so what? During his eight terms of service in the 1920s, Chief Justice William Howard Taft was on the winning side in a remarkable 89.5% of the 5-4 cases, the highest percentage of any justice in the court's history. But nobody thinks of him as a swing vote.

The idea of the swing vote is either a vulgarism or a myth — a story we tell ourselves to explain why a justice identified with an ideological bloc occasionally votes the other way. But the justice still mostly votes with the bloc.

Being a frequent fifth vote isn't the same as being a swing vote. That a justice winds up sometimes with one bloc and sometimes with another should delight us not because it means the causes we root for always have a chance. No. The delight comes from the desperate if agonizing hope that here, at least, is a jurist who listens to arguments and might be swayed by them; who recognizes that issues are divisive often not because one side is good and the other evil, but because there are reasonable arguments both ways; who is interested less in the politics than in the law.

That was O'Connor's way.

Consider her two most famous opinions. Writing for a 5-4 majority in Grutter v. Bollinger (2003), which rejected a challenge to racially conscious law school admission programs, she included a prescient warning: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That her prediction came true five years early isn't the point. What matters is that she was no more on the "side" of affirmative action than she was against it; rather, she was making the careful judgment of the pragmatist.

On abortion, too, O'Connor sought the sensible middle ground, voting in favor of state power to impose some restrictions and against state power to impose others. In her 1992 opinion for a three-justice plurality in Planned Parenthood v. Casey, O'Connor warned of the consequences should the court revisit settled precedents just because there was lots of opposition: "The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make."

Shortly after that decision was issued, I happened to be visiting with my former boss, Justice Marshall, who was by then retired. He'd read O'Connor's opinion, and lauded it for seeking a middle ground. Then he pointed to the dissenters and asked, "How would it have hurt them to join?"

Nevertheless, a court whose decisions can be predicted before a case has been argued is ossified and uninteresting and annoying, not unlike relatives who come for holiday dinner every year promising to be on their best behavior then invariably tumble into the same furious arguments.

Which is to say, they make us wish things were different.

I met Justice O'Connor only a handful of times, but she always had the same twinkle in her eye, the same habit of looking straight at you and speaking with so much charm that it took a few minutes to realize that she was disagreeing with you. More than any justice of recent decades, she believed in the ideal of the "endlessly renewed educational conversation" between the court and its publics; and she was, always, eager to engage.