Expectations awry

Washington Times ^ | Wednesday, July 6, 2005 | By Bruce Fein

[JohnHuang2]

Justice Sandra Day O'Connor's Supreme Court career epitomizes the judicial lawlessness that has regularly stained constitutional law since Chief Justice Earl Warren's stewardship from 1954-1969. She celebrated standards of interpretation pivoting on discernments unrelated to law or legal education in which judges are no more expert than philosophers, poets, or playwrights. The nation's maiden female justice also viscerally embraced gender discrimination claims to avenge the authentic prejudice that had blunted her professional ambitions. She generally conceived of the judicial role more as a broker striking compromises between competing political factions than as an expounder of longheaded legal doctrines to inform and to guide for the ages. To restore the rule of law in the Supreme Court -- the idea that the text and original meaning of the Constitution sharply constrains (but does not eliminate) interpretive discretion -- President Bush must appoint a disciple of Associate Justice Antonin Scalia or unjustly defeated nominee Robert H. Bork. Otherwise, the intent of the Founding Fathers to create a government of law, not of men and women, will continue to falter within the third branch. In Planned Parenthoood v. Casey (1992), Justice O'Connor, jointly with Justices Anthony Kennedy and David Souter, reaffirmed the constitutional right to an abortion initially decreed in Roe v. Wade (1973) from penumbras, emanations, and sister extraconstitutional considerations.