Paul Jacob

She was the best of justices; she was the worst of justices . . . Sandra Day O'Connor is retiring from the Supreme Court, leaving behind a mixed record and a bitter battle to pick her replacement.

O'Connor was spectacular at times. Unlike a majority of the court, she clearly recognized that the Constitution creates a federal government with enumerated and thus limited powers. But too often she seemed to bend that same Constitution to fit the outcome she desired.

Minority Votes
Sandra Day was in the majority on some excellent decisions, but sadly her best judgments were made in the minority. Two recent dissenting opinions were especially strong: Gonzales v. Raich and Kelo v. New London.

In Raich, the issue was the power of Congress to regulate marijuana that is legal under state law and does not involve interstate commerce. Though O'Connor made clear she opposed the California law, she sensibly found that without commerce, there was no Commerce Clause power to justify federal government intervention. She thus applied her constitutional principles and not her personal opinion.

In Kelo, she blistered the 5–4 big government majority that gave thumbs up to local governments seizing homes, businesses and churches — with compensation — even when only to give these properties to other private citizens likely to produce more tax revenue for the government doing the taking.

In 1995, O'Connor helped form the majority in U.S. v. Lopez, a landmark case because it was the first time in 60 years that the High Court had struck down an act of Congress under the Commerce Clause. But she joined Justice Kennedy's concurring opinion that only served to weaken the impact of the majority decision.

As Mark Moller, editor of the Cato Supreme Court Review, stated, "While Justice Sandra Day O'Connor has been a key vote in favor of reinvigorating constitutional limits on federal power, her unpredictable style of judging — favoring narrow, vague decisions over broad, clear ones — has short-changed the Rehnquist Court's promise, ensuring that on many key fronts the Constitution's most important guarantees remain under-enforced."

Oops! Where'd the Constitution Go?
Tragically, O'Connor has been in the majority on some of the court's worst recent decisions. Take just two: affirmative action and campaign finance regulation.

Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.