The equivocal legacy of Justice O'Connor

Justice O'Connor has passed away. May she rest in peace.

My first thought upon hearing of this sad event was about the CASEY decision in 1992, and about how this looks in retrospect.

Casey came just as a twelve-year period of continuous Republican occupation of the White House was ending. Clinton won the election that year -- before then, Reagan and the elder Bush had been President, and it was widely believed that they had put enough Federalist Society types on the High Court to ensure that ROE v. WADE was going to be overturned.

Yet Casey surprised people. Not only was ROE not overturned, what the court called its "essential holding" was specifically retained. This was due to the emergence of a "centrist bloc" consisting of Antony Kennedy, David Souter, and ... Sandra Day O'Connor. Although their decisive opinion in CASEY was put out as a joint opinion -- no one author among the three -- O'Connor was the one of the three with the greatest seniority. The first of those put on the court during that long 12-year period. She was also of course the one member of this group, and at the time the only member of the court, with a uterus. For some combination of these reasons O'Connor was widely seen as the guiding spirit of Casey.

The reason their decision was a "centrist" decision, though, was that Casey made an important concession to anti-Roe arguments. It overturned the rickety trimester framework of the 1973 decision and instituted a rather amorphous "undue burden" test instead.

This set up a dynamic that proved disastrous for Roe. Each new challenged regulation was defended on grounds that it constituted only a slight burden, not an "undue" burden, on the right to reproductive choice. It is the old paradox about how "just one hair on my chin" doesn't give me a beard. Ho many hairs does, though? There must be some number, the highest possible number of hairs that is short of a beard. Beyond that number, there is a beard on my chin. And the last hair to put me at that number? At that point "just one hair" does do the job. Over the following three decades it became progressively easier for states to burden the right to choose an abortion SHORT of prohibition. Until we get to Dobbs when Roe, as well as Casey, ceased to be the law at all.

So, did O'Connor save Roe or doom it? Perhaps it was in a Big Picture sense doomed and she simply bought it some extra time, allowing that time for a consensus to develop that would, in OUR time, eventuate in sufficient political support for reproductive freedom. This is why we have successful votes to put explicit protections in state constitutions: that consensus did develop.

Check in with me after another 50 years have passed and we'll have some perspective.

A Story About Coleridge

This is a quote from a memoir by Dorothy Wordsworth, reflecting on a trip she took with two famous poets, her brother, William Wordsworth, and their similarly gifted companion, Samuel Taylor Coleridge. We sat upon a bench, placed for the sake of one of these views, whence we looked down upon the waterfall, and over the open country ... A lady and gentleman, more expeditious tourists than ourselves, came to the spot; they left us at the seat, and we found them again at another station above the Falls. Coleridge, who is always good-natured enough to enter into conversation with anybody whom he meets in his way, began to talk with the gentleman, who observed that it was a majestic waterfall. Coleridge was delighted with the accuracy of the epithet, particularly as he had been settling in his own mind the precise meaning of the words grand, majestic, sublime, etc., and had discussed the subject with William at some length the day before. “Yes, sir,” says Coleridge, “it is a majesti

Five Lessons from the Allegory of the Cave

Please correct me if there are others. But it seems to be there are five lessons the reader is meant to draw from the story about the cave. First, Plato is working to devalue what we would call empiricism. He is saying that keeping track of the shadows on the cave wall, trying to make sense of what you see there, will NOT get you to wisdom. Second, Plato is contending that reality comes in levels. The shadows on the wall are illusions. The solid objects being passed around behind my back are more real than their shadows are. BUT … the world outside the the cave is more real than that — and the sun by which that world is illuminated is the top of the hierarchy. So there isn’t a binary choice of real/unreal. There are levels. Third, he equates realness with knowability. I only have opinions about the shadows. Could I turn around, I could have at least the glimmerings of knowledge. Could I get outside the cave, I would really Know. Fourth, the parable assigns a task to philosophers

Searle: The Chinese Room

John Searle has become the object of accusations of improper conduct. These accusations even have some people in the world of academic philosophy saying that instructors in that world should try to avoid teaching Searle's views. That is an odd contention, and has given rise to heated exchanges in certain corners of the blogosphere. At Leiter Reports, I encountered a comment from someone describing himself as "grad student drop out." GSDO said: " This is a side question (and not at all an attempt to answer the question BL posed): How important is John Searle's work? Are people still working on speech act theory or is that just another dead end in the history of 20th century philosophy? My impression is that his reputation is somewhat inflated from all of his speaking engagements and NYRoB reviews. The Chinese room argument is a classic, but is there much more to his work than that?" I took it upon myself to answer that on LR. But here I'll tak

Jamesian Philosophy Refreshed

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