Ed Whelan asks this question in response to former Justice Sandra Day O’Connor’s claim that some of her decisions “are being dismantled” by the current Supreme Court. Ed argues, and I believe demonstrates, that Justice O’Connor’s ad hoc decisionmaking was inherently unclear and unstable, so that her “jurisprudence” could not be expected to endure. As Ed puts it: “O’Connor was notorious for rulings that failed to set forth any clear principles, and I don’t see how a decision can be ‘dismantled’ without its ever having been meaningfully assembled in the first place.”
Mush, to anwer Ed’s question, isn’t substantial enough to be dismantled. Rather, it tends to “run off” like any watery substance. This may be what will happen with many of Justice O’Connor’s unprincipled 5-4 majority opinions. The center cannot always hold, nor should it when it is idiosyncratic.
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