Bench Memos

Retired Justice, Active-Duty Chicken Little

In an interview with Chris Wallace on Fox News Sunday this morning, retired Justice Sandra Day O’Connor continued her pet campaign of persuading Americans to stop chafing under the yoke of judicial supremacy.  Convinced, for some odd reason, that “in many, if not most, high schools today, civics education is no longer required,” Justice O’Connor plans to lend her name to a website that would instruct young people that they do not really govern themselves–judges do:

Indeed, when we got a Bill of Rights giving every citizen the right to due process of law, to freedom of speech, and freedom of religion and so on, the only way that can be enforced is to give courts the power to overturn actions by the legislative or executive branch that impinge on those freedoms.  And that’s how it has to be enforced.

This might–just might–be a tolerable theory of the range of the judiciary’s power, if it were accompanied by some account of how abuses of that power were to be dealt with by the other branches that are more representative of the people, and that have their own responsibilities for preserving the Constitution.  But O’Connor rejects, root and branch, any understanding of the separation of powers that might invite palpable responses to judicial usurpation.  (It is in fact doubtful whether she is capable of holding the two words “judicial” and “usurpation” in close proximity in her mind.) 

As she has done on repeated occasions over the last couple of years, O’Connor conflates legitimate institutional responses to judicial misbehavior with “intimidation” of an illegitimate kind.  She cites just two examples of “sanctions” recently proposed that went nowhere–and were so preordained to fail, one wonders what the former justice is worried about.  The first is the ill-considered “Jail for Judges” amendment to the South Dakota constitution, a resounding failure at the polls.  The second example is the fleeting mentions of impeachment of federal judges that followed Terri Schiavo’s death, and the Supreme Court’s recent invocations of foreign law.  But no serious person thinks that a single case about which a sound criticism might be lodged, but which was decided in good faith with no sign of corruption, can constitute grounds for impeachment.  Whether an entire career as unprincipled and abusive as Justice O’Connor’s can present itself as a prima facie case for removal from office is a much more interesting question.

In a burst of generosity toward her fellow citizens, Justice O’Connor says, “by no means do I suggest that it’s wrong to criticize courts for particular decisions.”  This, it seems, is the extent of the checks and balances that she is willing to tolerate where the federal judiciary is concerned.  But as long as the rest of us are all talk and no action, we have surrendered some of the most important territory of self-government to the judges.

Amid all this chicken-littling about how “partisan attacks on judges” (in Chris Wallace’s words) have never been worse, we also find this highly amusing case of Justice O’Connor revising her own history:

Now, when I was a youngster I do remember seeing on the highway out by the Lazy B Ranch [where O’Connor grew up] a big billboard saying “Impeach Earl Warren,” and that was in the years when there were some cases like Miranda and some criminal cases, and people got all excited.

Miranda v. Arizona, of course, was decided in 1966, when O’Connor was not a “youngster” living on her father’s ranch, but a 36-year-old assistant attorney general of Arizona.  And if she was remembering some earlier instance of such billboards appearing, perhaps soon after Brown v. Board of Education was handed down in 1954, she was already then a young graduate of Stanford Law School, married to John O’Connor, and living in Germany while he served in the armed forces.

As I get older, the temptation grows stronger refer to myself in my twenties and thirties as a “youngster,” so maybe we can cut Justice O’Connor some slack on this one.  But she was an active Republican and a serving public official in Arizona in the 1960s, and it would be interesting to know if she ever uttered a peep in those days in opposition to the “Impeach Earl Warren” movement that put up those famous billboards.  Conveying the false impression that she was just a girl at the time is a convenient way of putting that all behind her.