O'Connor, the river-running justice

So Sandra Day is resigning, thus giving Bush an up-or-down chance to show whether he is a uniter or a divider. Does anyone doubt which way he'll go?

What's interesting about the WaPo article is that, after the first half speculating about a replacement, the rest of the article reads like an obituary. Despite that style, the article doesn't attempt to draw an overall judgment of O'Connor's jurisprudential legacy. That legacy, however, is quite clear, albeit quite small.

O'Connor will be remembered as an anti-theorist, a justice who consistently sought to rule based on her best judgment of the what the median national opinion was on any subject. She didn't care for ideological or principled readings of the Constitution, but rather sought to actually judge cases on a case-by-case basis, and to avoid setting large precedents. Hewing to the political center as a matter of principle, she didn't mind trampling on intellectual principles in order to reach political middle ground. In this sense, she was probably the most genuinely "conservative" justice on the bench, in the sense that she did not try to use the Court's authority either to push the country in any particular direction, or to stop the country from going in some direction.

O'Connor's political instincts yielded a curious double result. On the one hand, she was always perceived as an incredible influential justice; her instinctual centrism made her more likely than any other member of the Court to be the swing vote (i.e. in the majority during a 5-4 decision). On the other hand, because she wanted to judge cases on their particulars, and to make political judgment rather than jurisprudential principle the basis for decision, it is unclear that she will have any lasting imprint on the direction of the Court or the country. Unlike ideologues on the right and left, she did not try either to dam or to straighten the American political river, but instead tried to push the court to ride that river like an expert kayaker.