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Two kinds of pragmatist

Sandra Day O'Connor How the First Woman on the Supreme Court Became Its Most Influential Justice Joan Biskupic Ecco/HarperCollins: 400 pp., $26.95 * Active Liberty Interpreting Our Democratic Constitution Stephen Breyer Alfred A. Knopf: 164 pp., $21

October 23, 2005|Jeffrey Rosen | Jeffrey Rosen is a law professor at George Washington University and legal affairs editor of the New Republic. He is the author of "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age" and the forthcoming book "The Most Democratic Branch: How the Courts Serve America."

EVER since Justice Sandra Day O'Connor announced her intention to retire from the U.S. Supreme Court, Democrats have hailed the former Republican legislator from Arizona as a paragon of pragmatism and moderation. Now that President Bush's controversial choice to replace O'Connor is prepping for a November confirmation fight, senators from both parties are wondering openly whether Harriet E. Miers would be a lawyerly pragmatist in the O'Connor mold or a conservative ideologue in disguise.

Yet what, precisely, is constitutional pragmatism, and should liberals really be in a hurry to embrace it or conservatives to oppose it? A reading of two new books -- one a biography of O'Connor, the other the first extended defense of judicial pragmatism by a sitting Supreme Court justice, Stephen Breyer -- suggests that the answers may be in the eye of the beholder. For a modest justice with a sense of humility, such as Breyer, pragmatism seems, in most cases, a manifesto for judicial restraint. In the hands of the less deferential O'Connor, pragmatism sometimes has become an excuse to decide the most politically divisive questions in the country herself.

In the subtitle of "Sandra Day O'Connor," Joan Biskupic promises to explain "How the First Woman on the Supreme Court Became Its Most Influential Justice." Her implicit conclusion: O'Connor approaches her job as a justice in much the same way she did when she was majority leader of the Arizona Senate. As an elected politician, O'Connor was noted for her centrism (she carved out a moderate position on abortion and religion) and her sensitivity to what was politically possible. (She backed the Equal Rights Amendment until it looked like a lost cause.) When President Reagan nominated her to the court in 1981, her moderation and pragmatism won bipartisan acclaim, with the exception of the religious right, which feared she wasn't a true believer. When the Rev. Jerry Falwell declared that "all good Christians should oppose O'Connor," her mentor, former Arizona Sen. Barry Goldwater replied: "All good Christians should kick him in the ass."

As it turned out, however, Falwell was right. On the high court, O'Connor has proved to be as moderate and politically savvy as she was in the state Senate. Keeping careful track of vacillating justices, Biskupic reports that O'Connor became skilled at lobbying to win a fifth vote or to protect her majorities. Believing that government shouldn't move too far to the right or the left, she became even more astute than Congress at reflecting, with exquisite precision, the views of the median American voter. She grew especially close to Breyer, a fellow moderate who values her experience in electoral politics, which he thinks has made her sensitive to the way the court's decisions are likely to be received by the country. "She tries to think through the consequences of saying less or saying more," Breyer told Biskupic in an illuminating interview. In a recent speech, he was even more effusive: "You can't go wrong following Justice O'Connor."

Although Biskupic, the Supreme Court reporter for USA Today, offers a comprehensive narrative of O'Connor's remarkable judicial career, she does not address whether the justice's pragmatic and at times frankly political approach to her job has been good or bad for American democracy. Justices, after all, are not supposed to pay attention to opinion polls, and whenever the court strikes down federal or state laws it arguably thwarts the will of national or local majorities. Who elected O'Connor to run the nation for nearly two decades as a majority of one? Or, to put it more politely: How can judicial pragmatism be reconciled with the court's unique role as an institution of democracy?

This is the important question that Breyer sets out to answer in his short, provocative book, "Active Liberty: Interpreting Our Democratic Constitution." It's a sign of Breyer's respect for his fellow citizens that he feels compelled to justify himself in democratic terms. The only other justice to write a book about his judicial philosophy is Antonin Scalia, whose vision of constitutional "originalism" Breyer explicitly challenges.

Breyer argues that instead of focusing only on what the framers of the Constitution originally intended, as Scalia articulated in the 1997 book "A Matter of Interpretation: Federal Courts and the Law," judges should think about the practical effects of their decisions on the democratic process. Breyer cites early 19th century French philosopher Benjamin Constant's distinction between the liberty of the ancients (defined as freedom from government coercion) and the liberty of the moderns (defined as the freedom to participate in government) and says the Supreme Court should promote both forms. In the process, Breyer says, judges can serve democracy rather than thwart it, by encouraging broad political participation.

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