Justice O'Connor and the Rule of Law
April 2006
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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).
107
108 UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY [Vol. 17
Justice and her many