44. Alito and O'Connor

Dahlia Lithwick comments on Judge Alito's faint praise for Sandra Day O'Connor.  Alito's tribute to O'Connor during his opening statement came very close to snideness: "Justice O'Connor has been a pioneer, and her dedicated service on the Supreme Court will never be forgotten. And the people of the country certainly owe her a great debt for the service that she has provided."  Thanks for being the first woman on the Supreme Court, Sandy.  Oh, and for all your hard work.  Um, yeah, and ...  and the case-by-case approach.  Yeah, that too.  Thanks.

O'Connor is despised by movement conservatives and legal academics for the same reason: she didn't know the answer to every question ten years in advance.  O'Connor understood how a courtroom worked.  She generally had a clue about what the Court's rulings would mean in practical terms.  She saw the Supreme Court as a vehicle for coping with problems in the American justice system.  The striking thing about her best opinions is that they need no gloss.  They are perfectly clear, they foresaw and dealt with practical difficulties, and they have proved imminently workable in real life.  Examples include Strickland v. Washington, Coleman v. Thompson and Williams v. Taylor.

People like Scalia and, it would seem, Alito, despise that approach to judging.  For them, the answer comes first, the question afterward. 

It seems that most law professors equally despise practicality on the Supreme Court.   As far as I can tell, there are three reasons for this.  First, most law professors don't engage in the day-to-day practice of law, and many of them never did so (being a junior associate at a big firm doesn't count), so they have no way to evaluate practicality, or even recognize it.  For another thing, perfectly clear and workable opinions leave little for legal academics to write about.   (It's like an English professor contemplating Arnold Bennett -- what's there to say that Bennett didn't spell out?  And so another paper on The Golden Bowl is born.) 

But the most telling point is suggested by Professors Daniel A. Farber and Suzanna Sherry in their book Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations.  It's this: law professors  like to think up constitutional "theories of everything."  It's natural that people who devote their intellectual energies, not to mention their careers, to such pursuits would tend to admire justices who do the same.  So justices like Antonin Scalia and William O. Douglas become favorites in the academy.

Read just a handful of the opinions of Scalia and Douglas and you'll realize that each believes/believed that he is/was smarter than all his colleagues combined.  As Ms. Lithwick suggests, Alito's performance at his confirmation hearing suggests he, too, is of that ilk.   Her plaintive question will doubtless haunt us for the next 35 years, until Sam Alito, too, is wheeled off the Court by an orderly spraying Lysol in his wake: "Is there something to be said for a nominee, like John Roberts, who didn't insist that the answer to every question reside exclusively in his own open mind?"