William and Mary Law School

The Property Rights Decisions of Justice Sandra Day O'Connor: When Pragmatic Balancing Is Not Enough

Richard A. Epstein

Any search for two words to characterize Justice Sandra Day O’Connor’s judicial work over her distinguished twenty-five-year Supreme Court career would quickly hone in on “pragmatism” and “balancing.” Justice O’Connor is “pragmatic” not because she displays any trace of personal opportunism, but because of her deep institutional commitment to do what she can to promote the long-term stability of American political institutions under law. She believes in “balancing” because of her strong conviction that constant attention to the particular facts and circumstances of each individual case help restrain a Justice from pushing legal doctrine too far in one direction or another—again, in ways that might destabilize the legal system. So constrained, Justice O’Connor does not give pride of place to overarching theories in working out her particular decisions. It would, however, be a serious mistake to treat her as a constitutional “minimalist” who wants to situate every case on its own bottom, for she does have a consistent philosophy. Instead, her primary concern is to preserve continuity with existing legal doctrinal structures, which requires more fidelity to the past than any strong minimalist view of constitutional law would require. The best way to think of her work is as an effort to nudge the received judicial wisdom in her preferred direction, without attacking the intellectual foundations of the system as a whole. Put otherwise, she is comfortable—too comfortable, in my view—with the United States’ modern social democratic state that relies on a firm public/private alliance that simultaneously works for both sustained economic growth and a fair distribution of wealth. Her frame of mind represents an updated judicial version of Pax Eisenhower, with its winning campaign slogan of “Peace, Prosperity, and Progress.”

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 1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 177 (2012)