Americans can be forgiven for responding in Simpsonesque fashion when trying to analyze the bizarrely incoherent career of Justice Sandra Day O'Connor. But it makes sense once you acknowledge that she followed no consistent judicial philosophy, but rather some sort of socio-political philosophy that was so personal it appeared to outsiders as erratic. The judicial battles are at heart a conflict between the conservative desire for consistency in judicial decisions, rooted in an originalist reading of the Constitution, and the liberal desire for social expediency in having judges settle matters on which the political process has not reached a liberal consensus. This proclivity is what conservatives bemoan, as unelected and unaccountable judges make policy decisions that should be made by elected officials.

Charles Krauthammer explains:

Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

But that, of course, is the job of the elected branches of government. Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: whether the "system" the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature but also into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court. "The joke," writes professor Mark Tushnet in his book on the Rehnquist court, "was that people could save a lot of time and effort in making laws and filing lawsuits if only O'Connor would answer her phone and let them know what she thought beforehand."