Justice O’Connor and the Rule of Law

JUSTICE O’CONNOR AND THE RULE OF LAW

Eric J. Segall*

INTRODUCTION 107

‘ THE RULE OF LAW 109

JUSTICE O’CONNOR’S DECISIONS AND THE RULE OF LAW 112

Allen v. Wright 112

New York v. United States & Printz v. United States 115

Abortion, Affirmative Action, and Establishment 118

Abortion 118

Affirmative Action 120

Establishment of Religion 122

A Few Other Examples 129

N. CONSTITUTIONAL DECISIONMAKING AND THE

RULE OF LAW 134

CONCLUSION 137

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. This is what prevents judges from ruling now this way, now that – thumbs up or thumbs down – as their personal preferences dictate.1

INTRODUCTION

In the wake of Justice O’Connor’s retirement from the Court, there will undoubtedly be a flurry of books and articles devoted to the first female

* Professor of Law, Georgia State College of the Law. Versions of this Essay have been presented at a faculty workshop at American University, and at the 2004 Conference of the Southeastern Association of American Law Schools. I would also like to thank Sandy Levinson, Steve Kaminshine, Tom McCoy, Neil Kinkopf and Mark Tushnet for helpful comments on a previous draft.

McCreary County v. ACLU, 125 S. Ct. 2722, 275 l (2005) (Scalia, J., dissenting).

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Justice and her many