[EL] Justice O'Connor & Bush v. Gore

[Justin Levitt]

Justice O'Connor's latest interview has understandably gotten quite a 
bit of recent attention.  The piece noted below juxtaposes Justice 
O'Connor's recent musings about /Bush v. Gore/ with comments she made 
about partisan preferences in a presidential election twelve years 
earlier.  But for the juxtaposition to be significant -- for a 
meaningful implication to be drawn from the comments as paired -- it 
would seem to conflate (or link causally) several different notions: the 
idea that sitting Justices have personal political preferences, the idea 
that parties with broad ideological preferences may seek to seat 
Justices that share those ideological commitments, the idea that 
Justices can (and/or should) have different ideological approaches to 
legal questions, the idea that Justices decide cases with apparent or 
real partisan outcomes, the idea that Justices decide cases because of 
those partisan outcomes, and the idea that Justices can (and/or should) 
seek to avoid decisions in cases because they might be perceived to be 
deciding cases because of their partisan outcomes.

Those are a lot of very different ideas, some of which we might think 
love, some of which we might hate, some of which we might think 
surprising, and some of which we might think wholly unremarkable.  But 
the main point is that those are all different ideas, with very 
different implications.  Self-promotion alert: in a new piece 
<http://ssrn.com/abstract=2239491>, I suggest that conflation of these 
ideas is unfortunately regular practice, and offer an alternative way of 
evaluating (and responding to) the different forms of partisanship we 
see from public officials.

Justin

-- 
Justin Levitt
Visiting Associate Professor of Law
Yale Law School
203-432-2366
justin.levitt at yale.edu
ssrn.com/author=698321

On 5/1/2013 10:14 AM, Rick Hasen wrote:
>
>
>     "Sandra Day O'Connor: H.W. Bush Victory Was 'Vital for the Court';
>     An old letter suggests she too once saw the Supreme Court as a
>     political body." <http://electionlawblog.org/?p=49775>
>
> Posted on May 1, 2013 7:04 am <http://electionlawblog.org/?p=49775> by 
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> Linda Hirshman writes 
> <http://www.newrepublic.com/article/113079/sandra-day-oconnor-barry-goldwater-letter-bush-vital-court> 
> for TNR.
>
> Posted in Bush v. Gore reflections 
> <http://electionlawblog.org/?cat=5>, Supreme Court 
> <http://electionlawblog.org/?cat=29> | Comments Off

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