O’Connor’s reflections provide sympathetic and vinegary evidence supporting this view. They come in six parts, ranging from “Life on the Court” through “The Legal Profession and the Courts” to “The Rule of Law in the Twenty-first Century.” In a chapter about the the late Thurgood Marshall’s personal influence on her during the decade they served together, she wonders how it was possible for this black legal pioneer to confront “the darkest recesses of human nature–bigotry, hatred, and selfishness–and emerge wholly intact.” In a chapter that recounts the obstacles to women getting the right to vote and then exercising it, she says that the divergence of men’s and women’s votes in 1952, the year she came of age politically, gave the lie to the “miserable pre-war stereotype of women following their husbands or fathers, sheep-like, into the polling booth.”
But the striking quality of The Majesty of the Law is its remoteness. The plucky Arizonan comes across as a woman who holds herself above the fray. Sometimes, her goal is to explain the big picture, whether about the job of the Supreme Court (“to develop a reasonably uniform and consistent body of federal law”) or the one it shares with other government bodies. (“We must never forget, however, that the answers to many of our deepest national dilemmas may lie not in Washington, D.C., but in the American spirit of ingenuity embodied in lawmaking authority closest to the people themselves: our state and local legislatures.”)
Often, while offering a correction to what she regards as a mistaken point of view, she seems to be avoiding the subject she’s writing about. In recent years, the court has dealt with a series of major cases about the balance of power between the federal government and the states, known as federalism. Since 1991, when Clarence Thomas joined the court and provided a fifth vote, a conservative majority has repeatedly struck down federal laws in the name of states’ rights, with O’Connor among the five.
The wide perception is that this majority is engaged in narrowing the scope of federal law, especially dealing with civil rights and liberties. Respected observers of the court believe that these justices have led it to engage in what Yale’s Jed Rubenfeld calls “anti-anti-discrimination” and the University of Chicago’s Cass Sunstein calls “illegitimate judicial activism.”
In a chapter called “The Court’s Agenda,” however, O’Connor states that most of it is “dictated by external forces,” including the conservative majority’s agenda about federalism. Unconvincingly, she attributes the nation’s interest in the subject to the election of Richard Nixon in 1968. The justice praises the court’s “struggle with the difficulties it faces” –without saying how big disagreements are joined, what she thinks about them, or why she has taken the positions she has.
Her writing about women and the law is the most engaging and standoffish in the book. She laments that some states didn’t “begin to criminalize wife-beating” until the late 19th century and even then that most women “were left simply to forgive and try to forget.” Yet nowhere does O’Connor reckon with her vote on grounds of federalism to strike down the Violence Against Women Act, which gave women assaulted because of their gender the right to sue in federal court. And nowhere does she reckon with the contradictory stance she has taken about abortion, joining an eloquent 1992 opinion that upheld Roe v. Wade while almost always voting to allow state regulations that limit the scope of a woman’s right to choose.
Justices are sometimes praised for ruling with Olympian detachment. O’Connor’s writing is less godlike than royal. It’s made accessible by moments of humor, tartness, and insight, yet in the manner of a sovereign who has lost touch with her subjects, her Majesty is basically aloof.