Speaking of failures of imagination, the Wall Street Journal runs an op-ed today (subscribers only) by Sandra Day O’Connor, for whose retirement from the Supreme Court I will be eternally grateful. Leading with the scary prospect that the voters of South Dakota might pass an apparently ill-advised amendment to their state constitution that would eliminate the official immunity of judges where their rulings are concerned, O’Connor launches into a more general diatribe against any and all critics of “activist judges” (scare quotes hers). Alerting her readers that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history,” she comes out swinging for the unqualifed virtues of an “independent judiciary” (my scare quotes this time!).
Oh, please. I can agree with O’Connor that we should “mak[e] sure that criticism does not cross over into intimidation,” if by that we mean the kind of personal intimidation that involves threats to judges’ lives and families. But the federal judiciary at least is long overdue for some institutional intimidation, of the kind that responsibly, calmly, but firmly reminds the judges that the Constitution is not their plaything but the precious property of the American people. An independent judicary, to be sure—but a restrained one, remembering that too much independence in any branch of government is a bad thing. Justice O’Connor seems completely oblivious even to the possibility that judges such as herself are in large measure responsible for the attacks and criticisms leveled at American courts today.
Here, from O’Connor, is one of the most absurd sentences ever written about American legal history: “It is well worth remembering that, far more often than not in modern times, the judiciary has admirably performed these two vital tasks: checking the other two branches and protecting minority rights.” A more accurate history would read thus: Far more often than either of the other two branches in modern times, the judiciary has been the serial offender against the principles of constitutional government.