About Rationally Speaking

Rationally Speaking is a blog maintained by Prof. Massimo Pigliucci, a philosopher at the City University of New York. The blog reflects the Enlightenment figure Marquis de Condorcet's idea of what a public intellectual (yes, we know, that's such a bad word) ought to be: someone who devotes himself to "the tracking down of prejudices in the hiding places where priests, the schools, the government, and all long-established institutions had gathered and protected them." You're welcome. Please notice that the contents of this blog can be reprinted under the standard Creative Commons license.

Tuesday, July 03, 2007

The moral responsibility of Sandra Day O'Connor

George W. Bush will leave two legacies for his presidency: on the international front, he will have (further) damaged US reputation in the Middle East and among its own allies, thereby delaying any real progress in the region for at least another generation. The United States will not be seen as an honest broker in the Israeli-Palestinian conflict, Iran will be in ascendancy, and progressive and democratic movements in Saudi Arabia, Egypt and other countries will be set back for decades. Not to mention, of course, the energizing effect that Bush's war in Iraq has had on Islamic terrorists the world over.

On the domestic front, Bush's legacy will consist in having succeeded to tilt the balance of the Supreme Court so that American civil liberties will also be rolled back by a generation or more. It is already happening. The new court of Chief Justice Roberts and his sidekick Alito (not to mention the evil twins, Scalia and Thomas) have been able to sway centrist justice Kennedy in a series of recent cases that have enlarged the breach of Church-State separation, made it more difficult to desegregate the country's schools, curtailed students' freedom of speech, and facilitated the ability of big financial interests to affect the outcome of elections (ironically, in the name of free speech). And the list can go on and on, to the delight of conservatives and the dismay of progressives.

But Bush doesn't bear all the moral responsibility for the domestic catastrophe which – make no mistake about it – will cause much suffering and injustice in this land for decades to come. A large part of that moral responsibility has to be laid squarely at the feet of justice Sandra Day O'Connor, who retired, allegedly for family reasons, at the end of 2005.

O'Connor is no liberal, as even a superficial look at her voting record during her tenure at the Supreme Court clearly shows. But she was the centrist that made it possible for the progressive majority to hold the conservative rottweilers, Rehnquist, Scalia and Thomas, at bay in a series of increasingly divided decisions (usually 5-4) on issues ranging from abortion to Church-State separation, to affirmative action. She was clearly conscious of the necessity of maintaining a balance in the Court. Her husband told the Wall Street Journal on December 12 , 2000 that O'Connor was holding on because she was weary of what sort of judge President Clinton would appoint to the Supreme Court to replace her.

Yet, Sandra O'Connor failed to maintain the same attitude when George W. came to power, even though it was obvious to everybody that Bush would affect the composition of the Court in a much more dramatic fashion than Clinton would have, and certainly not in a direction that would help maintain the balance that O'Connor held so dear.

I don't know if Sandra O'Connor really retired in order to be close to her Alzheimer-suffering husband (she has been pretty busy after retirement, maintaining a staffed office, hearing cases for both Federal District Courts and Courts of Appeal, and being the Chancellor of the College of William and Mary). But family ties are not a sufficient moral excuse for abdicating one's responsibility to the welfare of a whole nation for a generation to come. She should have done what arch-conservative Rehnquist did: almost literally die on the bench to preserve her legacy and the civil liberties of this nation. Instead, O'Connor is morally responsible for the ongoing process of unraveling racial desegregation, breaking up the wall of separation between Church and State, and entrusting politics ever more into the hands of a small number of powerful and corrupt interests. I hope she can sleep at night, because I wouldn't.


  1. The real shame, to me, is that we have two camps. The "How can we give away civil liberties and overturn Roe v. Wade?" camp and the "How can we make this a workers paradise?" camp. It's just too bad we can't ahve a "How can we fairly interpret the constitution?" camp.

  2. I understand your sentiment but I don't know if I can hold her to such a high level of responsibility as you do. She is not responsible for electing Bush to a second term. She is not responsible for rolling over instead of filibustering one or both of Bush's Supreme Court nominations.

    Yes, I wish she would have stayed until we can get a Dem into the White House in 2009, but I'm going to hold the American public and Congress just as responsible as O'Connor.

  3. O'Connor had said in the past that she wanted to retire during the term of a Republican president. I hope she's happy now. Of course, she's going to die soon enough that she won't have to live with many of the consequences of her actions.

  4. "She is not responsible for selecting Bush to a second term. "

    1) She does bare responsibility as do Joe Lieberman and the others that could have stopped these terrible nominations. As do the voters in CT who voted for Joe.

    2) Unfortunately we did not elect Bush to a 2nd or even a 1st term. We voted for Gore and Kerry. We have got to correct our voting system. For now we need to propose a candidate who won't throw in the towel the next morning. And work to correct the system nationally and state by state.

  5. And the list can go on and on...

    Indeed. Add to it this particularly egregious decision, which demonstrates that this court does not much care even about its own credibility and use of logic: Ledbetter vs Goodyear, where our current bench found that Ledbetter's complaint against Goodyear regarding equal pay discrimination was invalid due to its not meeting the 180 day window. The court's interpretation of that number: 180 days not from the day she found out about the discrimination, but from the day of its first occurrence (it is important to emphasise first, since the court held, against itself[!], that each ensuing paycheck was not in itself an act of discrimination).

    Read more at FindLaw.

  6. I hope that former justice O'Connor realizes that she single-handedly did more harm to this nation than just about anyone in our history. Her part in the 2000 Presidential decision may have caused more damage than this country can survive. "Mr." Bush (I'll never call him President) is not in office legally.


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