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ATLANTIC HIGHLANDS HERALD |
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MAKING IT UP AS SHE WENT ALONG The hot topic at our house these days is “Supreme Court Disease”. It afflicts conservative-appearing appointees after they get on the Court. Typically they start out as modest, careful jurists – students of the Constitution, respectful of the people’s right to govern themselves. They might even delve into “original intent” to discern what the Founders meant when they crafted the Constitution. They are the kind of clear-thinking people you want on the High Court. But after ten or fifteen years or so we find them “slip-slidin’ away” (as the old song goes). Little by little, over the years, they have moved toward the liberal side until they are far from their original conservatism. As the big media like to say, they have “grown in the office”. A character in Arthur Conan Doyle’s classic novel, “The Hound of the Baskervilles”, had spent his fortune on bizarre court cases – some of them actually opposed to each other in purpose. He was very proud of having won a legal decision to deny picnickers access to part of his land, while he had also spent vast sums to establish a walking right-of-way across his neighbor’s property. In rough approximation, Justice O’Connor’s Supreme Court career resembles this. Mrs. O’Connor came to the Court in 1981 because Mr. Reagan’s wanted to appoint a woman. The media called her a “conservative”, but Arizona voters considered her “middle of the road”. Conservatives warned that she was an unreliable vote against Roe v. Wade. Having grown up on a ranch, she was touted as a “daughter of the soil” – a kind of female rail-splitter in the Abe Lincoln mold. She was the perfect choice for a cowboy president who rode the range. Besides, she had spent much of her career outside the courts. Dazzled by the historic import of the first woman ever appointed to the Supreme Court, the Senate approved her unanimously. Mrs. O’Connor started her political life conservatively enough. As Majority Leader in the Arizona State Senate she helped write a new Arizona death penalty statute after the Supreme Court had overturned all state execution statutes. She opposed both gun control and busing for school integration. But she also opposed a bill to prohibit abortions at the University of Arizona Hospital (although she voted to let hospital workers opt out of performing abortions). Once on the Court, Justice O’Connor employed the conservative-sounding principle of “judicial minimalism” – i.e., making no more law from the bench than necessary. (Conservatives viewed this askance, since making even minimal law from the bench is a liberal conceit.) She grew unpredictable and independent, casting the deciding vote in many 5-4 decisions. Operating “case by case”, she avoided establishing solid precedents that could be relied on by the body politic. Issues that might have been definitively resolved, like affirmative action, were thus kept in play. In Grutter v. Bollinger (2003), the Court approved affirmative action at University of Michigan Law School ( by 5-4 vote). In the majority opinion Justice O’Connor wrote: “…the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”. (No legal definition of “diversity” nor the Constitutional grounds for requiring it were supplied.) Justice O’Connor also added: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Lacking any evidentiary basis, this policy addendum was simply the world according to Sandra. College Diversity Heads rejoiced that their jobs were saved, but even minorities were troubled by the Court’s selective disregard for the 14th Amendment. In a related case, Gratz v. Bollinger, the Court ruled against the racial point system used by University of Michigan undergraduate admissions. Justice O’Connor also concurred in this 6-3 decision, noting that “…the procedures employed by the University of Michigan’s Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants.” Thus, she voted both for and against affirmative action on procedural grounds, essentially ignoring the “elephant in the parlor” – i.e., the Constitutional issue of government-sanctioned racial discrimination which is clearly prohibited by the 14th Amendment. Her “case-by-case” extra-Constitutional style was also visible in Lawrence and Garner v. Texas, 2003. The court voted, 6-3, to strike down a Texas law (and, by extension, all state laws) prohibiting homosexual sex. The majority cited both an emerging national consensus and foreign law to support their national normalization of sodomy. Justice O'Connor agreed with overturning the Texas law, but did not concur with reversing the high court's 1986 decision in Bowers v. Hardwick, a similar Georgia case. (“Minimality” was again the operative principle.) Of course, the U.S. Constitution contains nothing – either implicit or explicit – about a federally-protected right to homosexual sex (or any other kind of sex). Under the 10th Amendment, communities have always regulated sexual behavior according to local standards. In the public uproar raised by the ruling some politicians argued that justices who cite foreign law to support their decisions could be impeached, as such action violates their oath of office. On June 27, 2005, the Supreme Court announced 5-4 decisions in two cases involving displays of the Ten Commandments on public property. A Texas display was allowed. The majority said it “…served a "mixed but primarily non-religious purpose.” But a Kentucky courthouse display of the Commandments was not allowed. “The divisiveness of religion in current public life is inescapable,” Justice David Souter wrote in his majority opinion. Unconventionally, Justice Antonin Scalia read his own dissent from the Kentucky decision. He cited “…the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors.” Chief Justice Rehnquist and Justices Kennedy and Thomas joined Scalia in the minority opinion. Justice O’Connor voted against both displays, casting the deciding vote in the Kentucky case. Since Justice O’Connor’s retirement announcement, liberal news organs have sung paeans of praise to her independence and common-sense approach to the law. She has been lionized as “the most powerful woman in America”. Liberals insist she must be replaced with a “moderate” to maintain the Court’s “delicate balance”. But Kevin J. Hasson (president and founder of the Becket Fund for Religious Liberty) said, “We have a living Constitution. Her name is Sandra Day O’Connor, and thank God she’s retiring.” Justice O’Connor’s approach to jurisprudence was “Clintonian” before the term was coined. She pleased both political sides at various times, but neither side all the time. “Common sense” and “workability” guided her. Her rulings were not necessarily based on the Constitution or any known legal or political principles, but on her own sense of what the law ought to be. This is the real story of her tenure. (If this sounds OK to most citizens, we’re in more trouble than I thought.) Justice O’Connor’s career shows what Supreme Court Disease is and how justices catch it. Even conservatively inclined justices eventually have a kind of High Court “epiphany” when they see that the law can be whatever they think it should be. They are the final word. There is no appeal. No one can strike down their decisions. They are a power unto themselves. It is heady wine. Should any individual in a republican democracy be that powerful? Clearly, the founders thought not. Even the president – elected by a majority of the electorate – cannot make law in this way. He must persuade Congress to go along with his vision. There are checks and balances. But such checks that might control the Court are not being used. The Congress has been derelict. Recognizing the emerging problem of uncontrolled judicial rule, Abraham Lincoln said, “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the people will have ceased to be their own rulers.” Choosing the successor to Sandra Day O’Connor is already being touted as the greatest political battle since…what? Perhaps since FDR bullied the “senile Court” of 1937? Or perhaps since the Civil War? Maybe there has never been a battle as great as this because the stakes have never been so high and the Supreme Court has never been so far out of control. None of this, I should add, is about Justice O’Connor, personally. I’m sure she is a fine lady, a good wife and mother, and a decent person. Clearly she was able. She was simply corrupted by a system that encourages the country to regard Supreme Court Justices as god-like. Comments from House minority Leader Nancy Pelosi in this regard are instructive. Speaking of the recent “eminent domain” decision, she said, “…a decision of the Supreme Court … is almost as if God has spoken.” (I wonder if she thought that about the 2000 Bush v. Gore decision?) There are plenty of things I don’t know, but I do know this: nothing from the mouth or pen of a judge, legislator, cabinet minister or president is “as if God has spoken”. I readily stake whatever small reputation I may have on the absolute conviction that this “divine imagination” must be hewn out, root and branch, before it destroys the republic. The task cannot wait. It is a very serious matter. A recent Washington Post headline read, “O’Connor was the Pivotal Justice in a Polarized Society.” A mere quarter century ago, she sailed through confirmation with nary a probing question and a unanimous vote. Since then she has ruled – largely out of her own imagination – on many contentious national issues. Many of those rulings left important matters for others to settle. If society is polarized now, at least some of it is the Madame Justice’s fault. We need to do better when we choose her replacement.
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