Saturday, December 30, 2023

#364 / Obits (And A Tribute To Justice O'Connor)


Sandra Day O'Connor, who is strikingly pictured above, served on the United States Supreme Court from 1981 to 2006. She was the first woman ever to serve on the Court. O'Connor died on Friday, December 1, 2023, and if you click this link (The Times paywall permitting, of course), you will be able to read what Linda Greenhouse and The New York Times have to say about O'Connor's life and contributions. Another article, by Kate Zernike, and an article by Adam Liptak (both from The Times) provide more thoughts about O'Connor's legacy. I am also providing a thought of my own, a little later in this blog posting. 

Before saying something about O'Connor, though, it strikes me that a lot of "important" people have recently died, and have had their lives memorialized in a New York Times' obituary. Lots of obits! I do want to say that I am not providing a complete list of those whom I would put in that "important" category, since both Ugo Betti and I are definitely committed to the idea that we are all "important." That having been said, it does seem that The Times has recently published long and detailed obituaries of a notable list of well-recognized national figures, who have now left us, in the final weeks of this current year. I feel like it makes sense to list them, here.

An extensive obituary of Henry Kissinger, for instance, has appeared in The Times. Kissinger died on November 29, 2023, and as most readers of this blog posting will remember, Kissinger was the United States Secretary of State in the administration of president Richard Nixon. I had a personal run-in with him myself, and I have confessed that I am "not a fan." 

Charlie Munger, who died on November 28, 2023, just a day before Kissinger, was a rather beloved figure among those who follow business and financial affairs. Munger was a partner of Warren Buffet, esteemed investor, business leader, and philanthropist. The Times obituary, by Andrew Ross Sorkin and Robert D. Hersey, Jr., outlined Munger's contributions as follows: 

Although overshadowed by Mr. Buffett, who relished the spotlight, Mr. Munger, a billionaire in his own right — Forbes listed his fortune as $2.6 billion this year — had far more influence at Berkshire than his title of vice chairman suggested.
Mr. Buffett has described him as the originator of Berkshire Hathaway’s investing approach. “The blueprint he gave me was simple: Forget what you know about buying fair businesses at wonderful prices; instead, buy wonderful businesses at fair prices,” Mr. Buffett once wrote in an annual report.

Rosalyn Carter also died recently, on November 19, 2023, at the age of ninety-six. The wife of former president Jimmy Carter, she, too, has been remembered in an extensive obituary in The New York Times. The obituary makes clear that she was deeply enmeshed with her husband is virtually every aspect of his public life, not only during the time he served in his nation's highest office, but afterwards, as well:

After Mr. Carter lost his re-election bid in 1980 to Ronald Reagan, he and Mrs. Carter embarked on what became the longest, most active post-presidency in American history. They traveled the world in support of human rights, democracy and health programs; domestically, they labored in service to others, most prominently pounding nails to help build houses for Habitat for Humanity.

In October 2019, after more than 73 years of marriage, they became the nation’s longest-married presidential couple, surpassing the record set by George H.W. Bush and Barbara Bush. The Carters marked their 77th wedding anniversary in July. 

In the continuum of first ladies after Mrs. Roosevelt, Mrs. Carter broke the mold. Like most of the others, she championed a cause — hers was the treatment of mental illness. But she also immersed herself in the business of the nation and kept a sharp eye on politics, a realm her husband famously claimed to ignore.

The Rosalyn Carter obituary tells what I think is a very "cute" story about the first meeting of Jimmy and Rosalyn. Rosalyn had just been born. Carter's mother, a nurse, had assisted in the delivery, and she brought her three year old son, Jimmy, to see Rosalyn, the new baby, just a few days after Rosalyn's birth. Hard to imagine a more "lifelong" connection!

I guess the reason I felt impelled to list these recent obituaries, as published in The Times, is very much related to that blog posting of mine, "We Just Lost Someone Great." That blog posting does speak, so clearly, to what I think we all need to know about ourselves, and about the significance of our lives. Reading about the accomplishments of the "great statesmen," the "life partners" of our presidents, the "financial leaders" who have become billionaires through their business and investing efforts, and those who have served on our highest court, could convince us that those are the "great," the "important" ones, and that we are not. But I actually have the opposite reaction, personally, and I hope readers of this blog posting will have such a reaction, too. When we lose anyone, it is then that we let ourselves understand that they were truly "great," and that is what we need to recognize about ourselves, too. I am suggesting that we do that while we are still alive!


The O'Connor obituary contained a line that I think worthy of a comment. My blog postings are very often stimulated by just a line, or two, as I react to something I have read. Here is what I read in the O'Connor obituary in The Times, discussing her role as a judicial "centrist": 

Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.

That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003 (emphasis added). 

I have, recently, been writing - and rather longwindedly, I'll have to admit - about my "Two Worlds Hypothesis," with one of the key principles being that WE make the laws that govern the world that we most immediately inhabit. I think O'Connor's statement, above, is a kind of illustration of what I am talking about. 

Generally speaking, people tend to think that the Surpeme Court discovers what the law "is," by looking through past cases, studying the Constitution, interpreting the statutes that are relevant, and then "finding" what IS the law, and then applying it to the case before them. "Traditionalism" is one word that is used to describe what many believe is this process - and what they believe is the correct process: the Court rules (and should rule) by discovering or "finding" a "law" that exists independently of the decision in which the Court states what the law is. Sometimes, this "traditionalism" approach is opposed to the idea of a "living Constitution." 

Please note that the "traditional" approach analogizes our human laws to the laws that govern the World of Nature. Such laws are simply inherent in how the world works; they are descriptions of what must and will happen. They can be "discovered" with proper research.

In fact, it is my contention that human laws are completely different. They are not some preexisting rule that is "discovered." Instead, our human laws state not what must and will happen, but are "prescriptions," not "descriptions." Our laws articulate what we want to happen, what we want the law to be, since in "our" world, the "Human World," in our "Political World," the laws are not "found," independently existing. Instead, we create the laws, as we decide what the law should be. The laws, thus, are an expression of human freedom - stated as a "decision," not "discovered" as though they could exist independently of what we choose to do. 

O'Connor, who was known as a "conservative," signed on to the decision in Roe v. Wade (the traditionalists have recently overturned that decision on an analysis that there was no "right" to abortion at the time our nation was formed). The traditionalists were looking for the law as though it were a "thing," something that exists independently of what we want the law to be. O'Connor had another view.

Is it surprising that this "conservative" justice should have taken the position she took on Roe v. Wade? Not really! Study, again, what she says in the quote excerpted above: 

Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus.

Our laws are what we decide they ought to be. They are, in fact, a statement of a "social consensus." And that word, "we" is "plural" because "we" includes everyone, and we are in this together. Our "political" institutions, including the Supreme Court, are not supposed to try to "find" the law, as though it existed independently of our choices. It is supposed to "state" the law, reflecting our "social consensus," and paying devoted attention to the limits imposed by our Constitution. That is the Court's assignment, so that we can, together, exercise the freedom that is inherent in our human world. 

Thank you, Justice O'Connor!

Justice O'Connor, by the way, was a Stanford graduate, an alumna of what later became my own alma mater. I don't think, though, that Stanford University is necessarily where she got her appreciation of the proper role of a Supreme Court Justice! Wherever she got it, we all owe her our appreciation!

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