Charles Krauthammer

WASHINGTON -- Perhaps the most telling moment of Sandra Day O'Connor's quarter century career on the Supreme Court came on her last day. 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?''

     This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social ``systems'' that either worked or did not.

     But that, of course, is the job of the elected branches of government. Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: Whether the ``system'' the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?

     O'Connor says that America has negotiated church-state boundaries so successfully that we should not rock the boat. But we went 170 years allowing school prayer and other kinds of public religious expression. Then, from 1960 on, we changed course and systematically stripped religion from the public square. In neither era -- school prayer or post-school prayer -- was this country particularly given to jihad or pogroms. How then does history recommend one negotiated boundary over the other?

     Similarly in upholding Roe v. Wade. As the swing vote in Planned Parenthood v. Casey, O'Connor did not want to create yet another social revolution by overturning the blanket abortion right that had been in place for two decades. This is a reasonable social assessment. But equally reasonable is the contrary assessment, offered by Ginsburg (before she ascended to the Supreme Court) that Roe ``halted a political process that was moving in a reform direction and thereby ... deferred stable settlement of the issue.''

Charles Krauthammer

Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.

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