Stuntz on Powell and O'Connor:
Lawprof Bill Stuntz has a fascinating piece at The New Republic on judicial uses of power, his experience clerking for swing vote Justice Lewis Powell, and what it suggests to him about the tenure of Sandra Day O'Connor. An excerpt:
I clerked for Powell his next-to-last year on the Court, and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. I don't know Justice O'Connor, so I can't swear that she felt in 1981 the way Powell felt in 1972. But I bet she did. As with Powell, you can see it in her opinions in the early 1980s: the tentativeness, the discomfort with hurling judicial thunderbolts.Thanks to How Appealing for the link.
But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it. O'Connor's has been the decisive voice on all those subjects, plus federalism and much of the law of criminal procedure. In Bush v. Gore, she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century. For all the talk about O'Connor's lawyerly virtues--people said the same thing about Powell--Bush v. Gore shows that (as my Harvard Law School colleague Heather Gerken likes to say) she is more politician than lawyer. So was Powell.