Krauthammer tries his hand at O’Connor bashing today in “Philosophy for a Judge” (Source: WaPo 5/9/05). O’Connor’s fault is that she lacks a “judicial philosophy:”
>stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social “systems” that either worked or did not.
But, as Krauthammer reminds us, judging social policy is a matter for the legislature and not the courts: The court is only to decide whether the laws that the legislatures passes comform to the constitution. Instead, O’Connor entered into the “empirical world” and sullied the purity of constitutional interpretation with facts.
>That is what made O’Connor so unpredictable. Sure, she was headed for what she judged to be socially a stable settlement. But you could never know what empirical judgments she would make to get there. Would she decide that the long-term stability introduced by returning abortion to the elected branches of government would outweigh the short-term instability it would produce? You could not be sure. What you could be sure of was that she would come up with some ad hoc constitutional principle to justify her empirical judgment.
His evidence for this rests on two cases. The recent case concerning the display of the ten commandments (Source: Findlaw) and Planned Parenthood v. Casey which upheld Roe v. Wade (Source: Findlaw).
>In her opinion on the Kentucky Ten Commandments case, O’Connor wrote that, given religious strife raging around the world and America’s success in resolving religious differences, why would we “renegotiate the boundaries between church and state. . . . Why would we trade a system that has served us so well for one that has served others so poorly?”
One of the things that joins the work of the courts, of columnists, and of philosophers, is reliance upon argument and interpretation. If we are to respond intelligently to the positions and arguments of others (whether they be the founders or political opponents), we must interpret them with fairness–considering both their words and their intentions so far as we can reasonably identify them. Krauthammer unfortunately does not seem to agree about the role of interpretation here. Compare his representation of O’Connor’s views with the following extended passage.
>Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. . .Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
She quite clearly claims that she is committed to the founder’s principle of preserving religious liberty as it is expressed in the Religion Clauses. She asks why anyone would want to change this “system” grounded in the religious tolerance of the founder’s. But what she is almost certainly not saying is what Krauthammer wants her to have said–that the case should be decided simply on the basis of “social stability.” O’Connor is considering the founders’ intentions in the Religion Clauses, and as she writes:
>When we enforce these restrictions, we do so for the same reason that guided the Framers–respect for religion’s special role in society. Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.
I have certainly not made a study of O’Connor’s decisions and so I am loathe to identify the principles on which she was offered her opinions. Nonetheless, it is hard to see how Krauthammer’s somewhat wet distinction between judicial and social philosophy is supported by his evidence (at least when it is given a careful reading).
It seems to me that underlying the difference between an O’Connor and a Scalia is not the difference between a stable set of principles and an unprincipled pragmatism–but rather a fundamental difference in hermeneutics. This is the difference between a naive conception of the nature of texts resulting in an anxiety removing fundamentalism and a more sophisticated recognition of the complications that historicity brings to interpretation. And underlying the difference between an O’Connor or a Scalia and a Krauthammer is the recognition of an obligation to hear the case before them impartially and address the best arguments of their opponents. The world that the pundit lives in does not, regretably, impose upon them this obligation.