SO LONG SANDY (Some of us will certainly miss you!)(AND SOME OF US WON'T)

Justice Alito's confirmation this morning and his swearing-in this afternoon have ended the uninspiring jurisprudence of one Sandra Day O'Connor. SDOC was a baby-splitter who could not be counted upon to provide a consistent approach or analysis for the cases which came before her, be it abortion, affirmative action, etc. I wish her well in her retirement, made all the more burdensome by a husband with Alzheimer's, but I doubt many lower court judges or lawyers will miss her.

YIPS from Steve: Couldn't. Disagree. More. O'Connor was one of the greats of twentieth century America, history will show. Without a doubt.

MORE LMC YIPS: Sorry, Steve-O, it will not if it is written by lawyers who had to read her opinions or the lower court judges who had to follow them. SDOC will be remembered as the first woman to sit on the Supreme Court and for the occasional flash of brilliance. J.A. Crosan is probably the case that will stand the test of time but not much else.

SPITTING YIPS from Steve: I'd say that NY v. US from 93, and the federalism revolution it unleashed, has had a modicum of an impact. And her fingerprints on the Bush v. Gore per curiam opinion are important, even though my hunch on that I've gone on the record was that was Kennedy.

But this would make a good long bet: I'd wager $50 that ten years after her papers are opened fully to scholars, solidly done biographies done by legal scholars will place her in the top four justices nominated between 1950-2000 in terms of influence on the development of American law as a judge (and that the other three will be Warren, Brennan, and Rehnquist). Her papers---and when Rehnquist's papers are eventually opened, assuming there will be even limited public access--will tell a good tale on how the modern Supreme Court works, and how to build a coalition of 5. I don't think we fully appreciate the significance yet of the Court that passed today with O'Connor's official retirement. A contortionist who is able to consistently get 5 votes over time and push the law in a particular way (or prevent it from being pushed another way) accomplishes a heck of a lot more than the ideological purist who is the lonely dissenter or iconoclastic concurrer. And I also think her Kelo dissent will eventually become law, if not in the federal system certainly by a whole heck of a lot of state court systems disgusted with Stevens' blithe decision.

Any takers?

Flying into Phoenix last week, it struck me that there is a cool comparative biography to be written examining Barry Goldwater, William Rehnquist, and Sandra Day O'Connor (something like The Three Amigos from Arizona)(okay, the title is a joke but the sentiment is real).

Sigh.......
EVEN MORE LMC YIPS I will take your bet, Steve-O. O'Connor may be remembered among the political science types who see the Court as a political institution and marvel at her ability to build a coalition of five votes. She is not known, and will not remembered, for her legal scholarship. Rather, she will be remembered for the confusion created for the lower courts--recall her 8th Amendment standard-"evolving standards of a maturing society"; the "undue burden" of her abortion jurisprudence, or the twenty-five year sunset she would impose on affirmative action--none of which have any basis in the intent of legislature or the Framers. A quarter-century from now, Scalia will be better remembered for his strong scholarship, the clarity of his opinions, and for the emphasis on original intent of the Framer and the legislator, rather than the policy preferences of the judge.