Rosenberger (O'Connor concurring) v. Mitchell (O'Connorconcurrin g)

[Michael deHaven Newsom]

I may be  treading on treacherous ground, but it seems to me that
O'Connor has a tendency to use liberal rhetoric to mask a conservative
outcome.  Smith comes to mind.  Think of poor Brennan and Blackmun
trying to coax her to accept the consequences of her rhetoric.
Sometimes they succeeded, but often they failed.  Of some interest, her
"endorsement" test does seem to lead her to what I would characterize as
liberal conclusions much of the time.  One might say the same regarding
abortion rights.

    My sense of Justice O'Connor is that you first need pigeon-hole or
categorize the case and then see what her rhetoric and what her votes
suggest is going on.  She is perfectly capable of taking a hard-line
conservative stand, with little to no attempt to shroud her conservative
position in liberal rhetoric.  Bush v. Gore comes to mind.

Michael deHaven Newsom
Howard University School of Law

MSternAJC at AOL.COM wrote:

> Why do you assume that these opinions can be fully harmonized.My sense
> is
> O"Connor is more committed to case by case adjudication than sticking
> to
> rigorous theory? That may not be a bad thing (or a good) thing, but it
> does
> seem to me an accurate description. It is not dissimilar to her method
>
> elsewhere.
> Marc Stern
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