O'Connor didn't believe in putting the court's awesome authority behind hard-and-fast rules that would tie up a hugely complicated, divisive issue for generations... But the virtue of her one-at-a-time approach was that it left open issues that are better worked through on the floor of state legislatures and Congress, and in all of our kitchens and living rooms.
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O'Connor writes narrowly because she doesn't want to reshape the whole legal world with the stroke of a pen (though this is naive at times—since her affirmative-action, religion, and gerrymandering decisions do just that, intent or no). Her impossibly narrow opinions may not represent her own pathology so much as the pathology of other court members—who seek to raze whole legal landscapes with a single opinion. She wants legislatures to do that. She wants state supreme courts to do that. She wants the president to do that. In her view the court has virtually limitless power to tell the other branches when they're being stupid. But she'd prefer that they not be stupid in the first place.If the administration truly despises "legislating from the bench" as a whole and not just "legislating ideas we don't agree with from the bench," I look forward to seeing someone else of Justice O'Connor's stripe put up before the Senate. And in the battle that is pretty much guaranteed to come, remember that Article II, Section 2 of the Constitution of the United States states that the President nominates and appoints Supreme Court justices "by and with the advice and consent of the Senate." That's advice and consent--two separate nouns, neither of which is "automatic approval."
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