Justice Sandy.

The law, lawyers, and the court.
May 12 2006 5:40 PM

Justice Sandy

Five simple rules for discussing judicial independence.

Sandra Day O'Connor. Click image to expand.
Sandra Day O'Connor

If you want someone out there barnstorming about threats to judicial independence, you'll find no better candidate than former Supreme Court Justice Sandra Day O'Connor. When she was introduced at an event yesterday at George Washington University, the crowd was on its feet before she'd uttered a word. O'Connor has achieved the sort of living-legend status few Americans can claim, and as she begins to really test the boundaries of her new oratorical freedoms, she's decided that rebuffing attacks on judges is a good way to start. Threats of court-stripping, judge-bashing, congressional oversight; she's here to tell us that enough is enough.

Awesome.

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The format at GW is ostensibly a "conversation" between O'Connor and Court TV's Catherine Crier. But old habits die hard, and I can't count one instance in which O'Connor lets Crier complete a question. The Justice has come to discuss judicial independence, and part of her appeal as the Lorax of the federal bench is that she is just so exquisitely O'Connor. Her language is crisp and plain. Unlike her former colleague Justice Anthony Kennedy, she avoids metaphor, literary reference, or anecdote. Unlike her former colleague Justice Antonin Scalia, she avoids bombast, theory, or cuteness. She uses precisely the number of words necessary to make her point, and if Crier (or co-panelist Bill Bradley) opts to use too many, she simply cuts in and finishes their sentence.

O'Connor had me at hello. I have been railing against the sneering, partisan political attacks on the judiciary for a long time, and I'm delighted that she's ready to unload on the cretins who have been taking a brickbat to judges since the Terry Schiavo mess. But watching O'Connor's performance yesterday made me conclude that if she really wants to smack down the Tom DeLays of this world, she may need to be a little less regal and a little more brass tacks. This is not a courtroom dialogue. It's a barroom brawl. Five suggested rules of engagement:

1. Watch Your Language: The words "independent judiciary" are not political winners. If you want judges to be free from political meddling, you recognize that the term means independence from the other branches of government; as she puts it: "the ability of judges to address the issues based on the law and the Constitution without fear of retribution if the decision is unpopular." But in the hands of DeLay and Sen. John Cornyn, "independence" has become a dirty word: It means judges who are untethered from any solid law or precedent. O'Connor understands this, and she carefully explains that the term "judicial independence" is "a little unfortunate." She emphasizes that judicial independence does not mean that judges don't have to follow the law. O'Connor is on the right track, but let's go one step further: jettison the defense of "judicial independence" and instead start attacking "judge-bashers."

2. Stop Slamming the Media: When Crier suggests to O'Connor that judges might speak out more and explain themselves or otherwise answer their critics, O'Connor retorts that the judiciary is the "one branch that must explain itself every time" in its judicial opinions. Crier half-jokingly wonders whether judges could do a better job of explaining themselves, "in 30 seconds or less … that's the problem." To which O'Connor snaps: "That's your problem!" and follows up with a Kennedy-esque suggestion that the media "might read the opinion." This garners a huge laugh. But the courts can only keep shooting the messenger for so long. Judges need to understand that—like it or not—this is the age of bullet points and sound bites. It's not going away, and it's not the reason for attacks on the judiciary. You can rail against the press or you can avail yourself of it.

3. The Limitations of Civics: Another pet O'Connor gripe is the decline in civics education in this country. She describes giving a speech at West Point, to some of the "top students in the 50 states," only to discover that just one of them knew about the three branches of government or the notion of checks and balances. Again, O'Connor has a point. It's hard to imagine Americans rising to defend an independent judiciary if they have no idea that one exists or why it matters. But the current attacks on the courts have very little to do with popular ignorance about the role of the federal courts that the framers of the Constitution contemplated. These attacks are the results of cynical manipulations of the media (of, not by) and misdirected religious outrage, and coordinated attack campaigns by well-funded groups whose unapologetic aim is to reupholster the entire federal bench. Responding to all of this with "civics classes" is like responding to terrorism with Muzak. Of course Americans need to understand why the judiciary is uniquely apolitical. But that alone isn't going to stop the Justice Sundaycrowd.

4. The Limitations of "We Follow the Law":To hear O'Connor tell it, judges are never ideological, never biased, and never impose their own views or wills in deciding a case. This whole "balls and strikes" analysis rang hollow when John Roberts used it during his confirmation hearings, and it sounds no more plausible when O'Connor insists that the sole loyalty of every judge is to "the Constitution and the Bill of Rights," or the "text and 200 years of precedents." She concedes that judges may have some "room for debate, at the margins," but that is the same sort of mechanistic view of judging that moves the debate sideways rather than forward. If we are really going to have an honest conversation about the importance of judges, both sides need to acknowledge that there is at worst bias, and at best differing interpretive theory at work among different judges. That plurality of approaches and ideologies should be defended on its merits, not papered over with platitudes about robotic jurists.

5. Throw Your Own "Justice Sandy": As a general rule, judges should not be the ones to stand up and extol the benefits of leaving them alone. It never fails to sound self-serving and elitist: "Step back, commoners. What we do is too complex for you to understand." Worse, it makes it seem as though judges simply want to be immune to all scrutiny and oversight so they can continue to legislate from the bench. And that plays right into their critics' hands. But O'Connor is the best pinup girl around for judicial independence. She is neither secretive nor elitist; she's plain-speaking, tough-minded, and open. She is, in sum, the exact opposite of the stereotype that the judge-bashers like to flay: the snobby, reclusive know-it-all. And that is precisely why Sandra Day O'Connor will turn out to be the secret stealth bomber in this rhetorical battle over judicial independence. She sits up there with her white hair and her blue suit and her home truths and she looks like precisely the sort of judge you'd want to be deciding matters. If O'Connor decides to hold a telethon, I'm signing up to sing.

Dahlia Lithwick writes about the courts and the law for Slate

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