February 24, 2005

Sandra Day O'Connor as the Court's Weather Vane

Jack Balkin has this to say about Justice O'Connor's position in Johnson v. California:

"In saying that Thomas and Scalia aren't being consistent, I do not mean to suggest that O'Connor is. As Thomas correctly points out, her refusal to defer to prison administrators in Johnson is in tension with her deference to university administrators in Grutter. And there are passages in today's opinion that are, frankly, laughable (emphasis mine) given what she wrote in Grutter."

Most of his post is on how he thinks the opinions of Justices Thomas and Scalia fly in the face of their supposedly principled positions on the government's use of race. He still expects a certain level of consistency from Thomas and Scalia, something he obviously gave up for in O'Connor a long time ago.

Posted by armand at February 24, 2005 09:10 AM | TrackBack | Posted to Law and the Courts


Also, to be clear, though I'm not sure that Balkin would agree with this (I don't remember his opinion of the ruling), just b/c her reasoning in light of Grutter is laughable, that doesn mean that Grutter itself couldn't also be considered laughable given the other race-related ruling that came down when it was announced. But it is, nonetheless, precedent (and precedent that was immediately endorsed by the White House, for whatever that is worth).

Posted by: Armand at February 24, 2005 09:42 AM | PERMALINK

these days, endorsement by the White House ought to suggest rather strongly that you're wrong.

Posted by: joshua at February 24, 2005 10:32 AM | PERMALINK
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