There's no great mystery about the fact that O'Connor wasn't a rigorous thinker. In fact, her reasoning was often downright laughable. Even when I supported the outcome of a particular case, I could bet, if O'Connor provided a concurring opinion, or wrote for the majority, that the reasoning she used to arrive at her vote would be unconvincing.

That's part of why her legacy is falling apart almost instantly: she influenced the court solely by the power of her vote, rather than by the quality of her reasoning. Smarter judges leave behind arguments that are so convincing that future justices are compelled to come to grips with their ideas. O'Connor's influence evaporated the moment she retired and lost her vote.

It's not just that other swing voters happened to be followed by people predisposed to take up their baton, as Ms. Lithwick suggests. The reason successors take up the baton of a piece of legal reasoning is that it has enough intellectual merit to be an attractive way of thinking about a problem. When Sandra Day O'Connor dropped her baton at the end of her leg of the relay, it was simply too embarrassing a prop for anyone to bother taking it up. I suppose there's some truth to the fact that a swing-voter's legacy is more in danger in a time of partisanship and sweeping political philosophies on the court. But O'Connor's years of being the court half-wit sure didn't help matters for her.

Personally, I take a little bit of sadistic glee in what's happening, even if I think the Roberts court's cases are a change for the worse. My glee comes from the fact that O'Connor is still alive, and is being forced to watch her life's work being reduced to an obscure footnote in history, right before her eyes. This strikes me as completely appropriate, since her own absurdly indefensible position in the Bush v. Gore case is what doomed her legacy to an early death. If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts. O'Connor has to watch her legacy destroyed precisely because of one of her patented pieces of legal idiocy -- what could be more fitting?

A hundred years from now the disgraced Ms. O'Connor will be remembered as one of the five co-conspirators in the Supreme Court's coup d'etat..... and very little else. Sure, she'll always have the fact she was the first female justice, but that will put her in league with people like Sally Ride -- remembered strictly for their double X chromosomes, rather than any enduring contributions to their field of endeavor.

Excellent. Thanks for articulating that so well.

Bush v. Gore is the demon seed that spawned this dark age. May a similar fait await all its conspirators.

<<If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts.>>

What are the odds?

1) Gore wins "recount"

50/50 chance at best.

2) Gore (or at least Democrat) wins 2004 election after 9/11, even though last 12 years of "security" provided by Democrats. Note that both O'Conner & Renquist replaced since 2004 election.

I would place this at about 20% at best.

Total of about 10% chance.

"likely"?

"sensible outcome"?

There is very little the Supreme Court could have done to FUBAR the count worse than the Florida Supreme Court did, (and by the way, every last one of them was appointed by Democrats). Besides throwing out contest/protest deadlines, usurping anything executive (i.e. certification), mandating partial counts in violation of Florida Law, overruling the trial court judge (that was Democrat) that actually heard the facts...

To suggest that O'Connor will be irrelevant because she didn't fit neatly into either of two constitutional theory groups that dominated while she was on the Court is short-sighted. (Whether she sealed her own fate in Bush v. Gore is a separate issue.) O'Connor had a constitutional theory, and she practiced it in her opinions (which were generally well-written and well-explained). I find it harsh that she is now ridiculed or written off because she didn't attempt to bend every case to her pre-decided views, but rather decided each case on what she judged to be the merits. Maybe I'm an optimist, but I appreciated that O'Connor's approach wasn't based on some theory that made each opinion a foregone conclusion, and a formality (is it ever any surprise where Scalia's opinion falls? Thomas'? Alito?). And, on a separate note, to suggest that anyone other than Kennedy is (or was) the resident Court idiot is criminal.

iwiwiwa, oh please,

O'Conner may have been a practical justice, but she was just as blindly ideological as Rhenquist, Scalia or Thomas.

When the chips were on the table, she showed her true colors, not only with Bush v. Gore, but also in the timing of her retirement, sticking out Clinton's second term so she could have a Republican president choose her replacement.

Bush v. Gore and Roberts are her true legacies, and deservedly so.

She stuck out Bush's first term as well... Was that just more of her insidious plan, to really fool everyone by "pretending" to care about her husband in their (much) later years? If I'm hammered for this, fine - but I respect her for stepping down when she felt it was right for her, as opposed to jurists like Rehnquist who just... refuse... to let go... Frankly, it's not the job of the Supreme Court to argue politics. I'm a realist; I understand that politicians who appoint justices attempt to leave their mark with their appointees. But I don't have to like it. And I don't buy the conspiracy theory that O'Connor was some sort of Republican mole. There are many agendas on the Court, and hers never seemed to be to bend the law to any particular ism other than what she thought was the right decision, on a case-by-case basis. She's getting killed for it now, but what if she was the only one doing things the way the founders intended?

You simply assume 9/11 would have happened anyway? I suppose it's possible. Maybe even likely. But it's definitely not certain. At the end of 2000, Clarke and Tenet, at the request of Clinton, had come up with a plan for putting Al Qaeda on the defensive. There was also the Hart-Rudman recommendations, which came out in early 2001, and included plans for integrating the intelligence function more tightly. Bush ignored both of these, and then spent the whole Summer ignoring members of the intelligence community "running around with their hair on fire." In fact, he even prioritized a month-long vacation at his Texas mansion over holding his first principals meeting on the subject of terrorism, despite a presidential briefing warning him Bin Laden was determined to strike in the US.

Is it possible that none of that mattered? Of course. But it's also possible that if we'd had competent leadership, things could have been different. As we found out after the fact, we had plenty of threads of the conspiracy in our possession, we just failed to put them together. If we'd had Gore in office, focusing on Al Qaeda, things might have been different. If we had a workaholic "shaking the trees" in the cabinet, who knows what would have come to our attention. Bits and pieces of information were out there -- maybe enough to discover the conspiracy -- they were just isolated in different parts of our system. We can't say for sure whether Gore, working closely with Tenet and Clarke, would have facilitated those clues coming together. We do know that Bush, wasting a month clearing brush in Crawford, didn't.

I don't fault her for not being predictable. In fact, I have a bigger problem with Scalia, Thomas, Alito, and Rehnquist, who try to make everything fit into their own personal pet theories. If O'Connor had been open-minded and smart, I'd have praise for her. Instead, she was open-minded and stupid. She simply didn't bother to think rigorously about the cases facing her, and that's where I fault her. She was like some local traffic court judge thrown up on the Supreme Court -- supremely out of her depth.

I'll have to admit I haven't read as many Kennedy positions, so maybe he was the same way. I don't know.

Agreed. When push came to shove, we found out what the justices really stood for. We found out that Rehnquist, Thomas, and Scalia had only been pretending to have rigid legal principles... if they had to embrace judicial activism, they would, if they had to intervene in political questions, they would, if they had to stomp on states rights, they would, and if they had to back a radical expansion of the equal protection doctrine, they would. All that mattered was that their candidate got appointed President. Similarly, we learned that O'Connor and Kennedy, whatever pretensions of being mavericks they may have had, were reliably in the GOP's pocket when it came time to steal the election. To the internal credit of Stevens and Souter, we also learned that not all GOP appointees are traitors to their country.

<<If we'd had Gore in office, focusing on Al Qaeda, things might have been different.>>

There are two words that Gore would have most likely been focusing on if he would habe been elected, but "Al Qaeda" aren't it.

If his time as VP and in the Senate are any indication, Gore's hard working and a good multi-tasker. That puts him two steps closer to stopping 9/11 than Bush ever got.

<<is it ever any surprise where Scalia's opinion falls?>>

Perhaps not to me but to the leftist "viewpoint" maybe:

Maryland v. Craig (Dissenting with Brennan, Marshall, and Stevens concerning Right to Confront Witnesses)

Texas v. Johnson (Signed Majority opinion from Brennan, with Marshall, Blackmun, & Kennedy concerning flag burning)

Hamdi v. Rumsfeld (Dissenting with Stevens concerning American Citizens being Held without Charge)

Kyllo v. United States (Authored Majority opinion signed by Souter, Thomas, Ginsburg, and Breyer concerning what constitutes an Unreasonable Search under the Fourth Amendment)

<<If his time as VP and in the Senate are any indication, Gore's hard working and a good multi-tasker. >>

What are you basing this upon?

I'm basing it on articles documenting his work habits, over the years. Unlike Bush, he wasn't a man known for month-long vacations. Nor was he known for insisting on one-page summaries of five-page summaries of important reports. He was notoriously wonky, and a workaholic like his boss.

He also had a relatively wide portfolio for a VP, on Clinton's watch (nothing compared to Cheney, of course, who is essentially the real President, but Gore was the most powerful VP before Cheney). Of course there was climate change, but he also spearheaded the attempt to twist arms to get NAFTA and the WTO round of the GATT implemented, along with coordinating administration actions on the Internet and telecommunications issues generally. There was also his "reinventing government" effort.

Like him or hate him, Gore was clearly a hard worker with a very curious mind. That would have been a very valuable asset to the nation in the first eight months of 2001, when we had all sorts of clues about the impending 9/11 attacks, but nobody in a high enough position was paying enough attention to even have a chance of putting them together.

actually, its well-known why she stayed past Bush's first term. When she was out on election night 2000, she got word that Bush had won. she reportedly said something to the effect "good, a republican can replace me." innocent enough, until Bush v Gore happened. At that point, she did not feel she could retire until Bush actually won the election in 2004, making his appointment of her replacement look less ugly. much classier than retiring in '01. but have no doubt, she had every intention of retiring once a republican was in the white house. she would have retired in 01 or 02 had Bush won florida, and did not need a Supreme Court appointment.