Posted on 11/24/2006 4:40:42 PM PST by flixxx
The latest critic of a Supreme Court ruling turns out to be the justice who supplied the key vote in its favor: Sandra Day O'Connor.
Addressing a legal conference in Texas, the former associate justice of the U.S. Supreme Court had some second thoughts about her opinion in Minnesota v. White back in 2002, which struck down that state's restrictions on judges' expressing their political views in campaigns for the bench.
The case was decided 5 to 4, and Justice O'Connor's concurring opinion made all the difference. Renowned in her time on the court as its swing vote, she's now swinging back.
What do you suppose has changed her mind, or at least softened her opinion?
Well, the former associate justice has been on a crusade since she left the court. She's concerned about threats to the independence of the American judiciary, as all of us should be. As usual, the threat comes from those who believe we the fickle people should be able to repeal unpopular decisions at will, or recall judges who deliver unpopular opinions, and in general subject fundamental law to the transient moods of ever shifting public opinion.
It may have occurred to Mrs. Justice O'Connor, too late, that judges, too, can threaten the independence of the judiciary. Because when judicial candidates start holding forth on the issues of the day, they become like all other politicians, and the judiciary becomes just as politicized as the legislative and executive branches of government.
There's a reason judges, like military officers, accept restrictions on their political speech. Because they have the personal dignity and political impartiality of their profession to uphold. When the judiciary is no longer considered above the passions and machinations of ordinary politics, neither is the law, and something of inestimable value is lost to a society that rests on the rule of law.
Justice O'Connor says she isn't in the habit of revisiting her opinions on the bench, but it sounds as if she's making an exception for this one. Minnesota v. White, she notes, "has produced a lot of very disturbing trends in state election of judges."
She was doubtless referring to the unseemly electioneering, complete with vicious advertising, that has started to characterize judicial races across the country in the wake of Minnesota v. White.
Justice O'Connor long has opposed the election of judges in the first place. (After all, she was appointed to the judiciary, so that must demonstrate the superiority of appointed judges.) But in Minnesota v. White, she seems to have got carried away by her animus toward an elected judiciary. If some states insist on electing their judges, she ruled, then they must allow judicial candidates to campaign on the issues as freely-and irresponsibly-as other politicians.
States that elect their judges, Justice O'Connor as well as said, deserve whatever happens to them-and to respect for their law.
It was not a very thoughtful opinion, which is what happens when judges get carried away by their passions, in this case a prejudice against an elected judiciary. By freeing judges of limits on their speech, Justice O'Connor invited the demagoguery that may be the greatest threat to the judicial independence she so cherishes. Hers was a very logical decision in Minnesota v. White-too logical. Like any extreme of reason separated from experience, it lost touch with reality.
Here in Arkansas, there's a perfect example of a judge who, by taking political stands on everything from the war in Iraq to the University of Arkansas' basketball program, seems to have set out to systematically undermine the public's faith in the impartiality of the judiciary. Rather than being above political passions, His Honor Wendell Griffen of this state's Court of Appeals has come to embody them. --OPTIONAL TRIM BEGINS-- By now this Great Pontificator has handed down extra-judicial opinions on military tribunals, the federal government's performance in Katrina's aftermath, the suitability of John Roberts' appointment as chief justice of the United States Supreme Court, the state's minimum wage Š and, well, one loses count. Suffice it to note that Judge Griffen's political comments have inspired more than 10 investigations by the state's judicial discipline commission, plus at least one protracted court case. --OPTIONAL TRIM ENDS-- Every time he makes one of his provocative speeches, the judge waves Minnesota v. White around like a permission slip to demagogue the issues as much as he likes. But courts do reverse course. Just as Sandra Day O'Connor seems to have changed hers. And couple of new justices have joined the Supreme Court since her time on the bench. There is hope that reason, the kind buttressed by experience, will yet triumph. Paul Greenberg is the Pulitzer prize-winning editorial page editor of the Arkansas Democrat-Gazette. His e-mail address is pgreenberg@arkansasonline.com. © 2006 TRIBUNE MEDIA SERVICES, INC.
Boo frickin hoo. I can only hope this affects her in some personal way and will haunt her for the rest of her days.
Justice O'Connor says she isn't in the habit of revisiting her opinions on the bench, but it sounds as if she's making an exception for this one.
Sorry Sandy, once the SCOTUS rules it's as if God spoke. We're stuck with the decision for eternity no matter how wrong the decision was. Put your hand on your heart and keep repeating "Dred Scott,Roe V. Wade".
She didn't have anything to do with those two cases and should not feel guilty for them. Luckily she did little damage during her tenur compared to those justices in the 60's and 70's.
She didn't have anything to do with those two cases and should not feel guilty for them. Luckily she did little damage during her tenur compared to those justices in the 60's and 70's.
She may not have ruled on Roe but every time it's used as a basis for a new ruling it's just as bad.
That woman has been responsible for innumerable unconstitutional and just plain evil decisions. So now she's waking up? Sorry, it's too late.
Ugh, Ronald Reagan's biggest mistake is off flapping her gums again.
Sandra Day O'Connor was one of the authors of the Casey decision.
As such, she is responsible for the continuing deaths of children killed under the authorization of Roe v. Wade.
That was a golden opportunity to end decades of political rancor by reversing an unconstitutional decision of the court. She voted to confirm it instead.
She voted pro-abortion just about every chance she got.
I'm so pleased she retired. Even when she accidentally got the Constitutional issues right, her decisions always turned on splitting a hair noone else could even see and left the law murkier than it was before she lifted her pen. One of the worst judges ever to sit on the Supreme Court.
She voted pro-abortion just about every chance she got.
For that glad to be rid of her....
That is big charge. Kennedy and Souter and Breyer and Ginsberg are still there making mischief. I guess that at least they are predictable and O'Conner wasn't.
Don't forget the mischiefmeister himself, Stevens. But I was distinguishing between bad judging and bad constitutional law. O'Conner was correct on the constitution more than, say, Stevens. But judges are supposed to draw clear lines so folks can predicate their behavior on those lines. That's part of the rule of law is knowing what the law is. O'Conner's decisions gave you no idea how the Court would go in the next similar case.
At least Stevens, Breyer and Ginsberg are clear: Whatever the ACLU wants to be unconsitutional, is. You can predicate behavior on a bad constitutional ruling.
A judicial John McCain...
Don't get between her and a camera.
Keep in mind, too, that when it comes to bending the Constitution, Sandra Day O'Connor was one of the chief architects of the novel practice of basing SCOTUS decisions on "international law and custom."
This open-ended legal atrocity is actually fairly recent. Next thing you know, they will be citing sharia law, perhaps in some forthcoming decision permitting polygamy, wife beating, and stoning of rape victims. After all, there is ample precident for these practices in foreign law all over the globe.
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