Please Do Not Emanate into the Penumbra

By Diogenes ( articles ) | Jul 04, 2005

Check out Mark Steyn's re-runs of three columns on the jurisprudence of Sandra Day O'Connor. The bit below is from 1993, after the University of Michigan Capitulation:

Whether or not you dig it as a personal philosophy, "diversity" makes a poor legal concept. It was not intended to be precisely defined, but instead woozy and fluffy and soft-focus. It makes a fabulous bumper sticker: "Celebrate Diversity." But it makes a poor legal concept to enshrine at the heart of the U.S. Constitution, which is where Swingin' Sandra's vote put it last week.

The correct term is "racial quotas," but that's too bald, too clear. So its proponents came up with the coy evasion of "affirmative action." But over the years that also became tarnished. Hence the invention of "diversity." Who could be against "diversity"? Who wouldn't want to celebrate it? It's the perfect enlightened vapidity. ... The court's message is: As long as we don't see how the sausage is made, you're OK.

Steyn points out clearly why the frequency with which O'Connor's votes with the winning side is not a compliment:

Swingin' Sandra is the fifth vote on all the 5-4 decisions setting the course for this great Republic, the one the lawyers pitch their arguments to, which isn't as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum. Clarence Thomas has a sign on the wall of his office: "Please do not emanate into the penumbra." But over at Sandra's pad it's all penumbra: The trick for counsel is figuring, in this constitutional twilight zone, which particular degree of gray tickles her fancy on any given day.

There's an analogy here with the politics of presidential election campaigns. The victorious party is the one that succeeds in wooing the swing voters -- those who might go either Democrat or Republican -- who are often the worst informed about and the least interested in the issues that divide the nation and distinguish the major parties. This brings about the painful and paradoxical situation that candidates deliberately avoid conceptual clarity in favor of the kind of feel-good sound bites most likely to flatter and reassure the most fickle and apathetic segment of the voting public. Of course the pollsters for both parties go mad quizzing the swing voters and sifting through the incoherent responses for clues to what attracts and repels them. In a puff-piece in the New York Times, Dahlia Lithwick defends O'Connor's unpredictability by euphemistically renaming it "fact-centered" jurisprudence:

Justice O'Connor's jurisprudence is narrow and fact-centered. Sometimes the lines she draws are visible only to her -- something that has driven her colleague Antonin Scalia to near apoplexy on more than one occasion.

"Fact-centered" here is to be contrasted with "principle-governed." How is her judgment to guide the lower courts, if the lines of demarcation are visible only to her? That's where the penumbra comes in. All facts look alike in the dark.