O'Connor concurring

[Emily Hartigan]

I don't see how this is a digression.
I used to be a bit of an O'Connor fan, and could forgive apparent theoretical binds when their partisan context was not so overwhelming.  Thanks for naming the possibility of hilarity, Sandy.  It's needed.
>>> Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU> 12/13/00 10:43AM >>>
There is a certain hilarity in Justice O'Connor joining in an opinion that
condemns the "intent of the voter" standard as being unconstitutionally
vague because it allows for different interpretations, since, as Steve
Jamar notes, the one thing that ties her jurisprudence together (and makes
Eugene's question about seeking consistency in her opinions so poignant) is
that she absolutely resists articulating any bright-line rules (except for
the extremism of New York v. US, where if you take her seriously even the
most compelling national interests wouldn't justify the US in
"commandeering state officials).  But I digress...

sandy


her jurisprudence At 09:04 PM 12/12/2000 -0500, you wrote:
>If you are seeking first principles, and I think you are;
>and even if not, if you are seeking abstract general
>principles, and surely you are, then the effort is doomed.
>Oconnor is not looking for a grand unification theory.  She
>is using a wide mash of principles and ideas and results and
>ideas and, for these cases on the edges, is not going to be
>bound by them.
>
>The factors she brings to bear will vary according to the
>issue and facts as presented.
>
>And in the end it depends upon how she views/frames it.  The
>discourse framing principles are what matter to her, and, in
>this area, those principles are not very predictable.
>
>I think you have focused far to narrowly on a point of
>connection rather than as she does on the differences.
>Small differences matter more to her than to you.
>
>There is no single principle or end - like no money to any
>religious group - that will work for her
>for these cases.
>
>I really think you are so enamored of hard-edged rules  that
>her subtle, case-specific approach leads you to miss the
>big, simple point.  She approaches them in a very
>fact-specific, case-specific manner.
>
>Whether this is good or bad depends on the extent to which
>one wants predictability, or even thinks predictability is
>possible in this area.  I don't think O'connor's approach
>leads to any less certainty than what the court has done
>over the years.
>
>It is a hard area with inconsistencies abounding - unless
>one looks very deeply at the facts and is willing to
>acknowledge that what some of us think are alike, others do
>not.  This is the only way to understand the  school support
>decisions and not go nuts.  Direct money to a school is
>different from the various things that are somehow treated
>as indirect - and of course directness is a matter of degree
>and opinion.
>
>Steve
>
>--
>Prof. Steven D. Jamar, Director LRW Program
>vox:  202-806-8017
>Howard University School of Law
>fax:  202-806-8428
>2900 Van Ness Street NW
>mailto:sjamar at law.howard.edu
>Washington, DC  20008
>http://www.law.howard.edu/faculty/pages/jamar
>
>"Nothing worth doing is completed in our lifetime;
>therefore, we are saved by hope.  Nothing true or beautiful
>or good makes complete sense in any immediate context of
>history; therefore, we are saved by faith.  Nothing we do,
>however virtuous, can be accomplished alone; therefore, we
>are saved by love."
>
>Reinhold Niebuhr, The Irony in American History (Scribners
>1952)
>

Emily Albrink Fowler Hartigan
St. Mary's Law School LW3
San Antonio, TX  78228
(210)431-2273
hartigane at law.stmarytx.edu