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June 11, 2008

The chip on Justice O'Connor's shoulder

What happens when you're a Maverick from Arizona and you retire from public life? Well, for one thing, no one remembers anything you've done, because it all depended entirely on you personally and very little of it was memorable.

This is pretty much what happened to Sandra Day O'Connor, who retired from the Supreme Court almost three years ago, in large part to undertake the sad and difficult task of caring for her husband, suffering from Alzheimer's, an act for which I hold her in the highest regard.

It turns out -- and you would never have suspected this, really, if were hiding in a cave somewhere -- that Justice O'Connor's judicial "legacy is fading away." (via How Appealing) But here's the thing: If your legacy is fading away in three years, you probably didn't have much of a legacy to begin with. As the article points out, "O'Connor set standards driven by the facts of particular cases." I've heard people refer to this kind of judge as "a lawyer's lawyer." But the fact is, it's just as likely that this type of judge is deciding cases based on personal whim. Here's why: If you can't articulate a rule that applies to more than one case -- or if you can, but your rule is so vague that you and only you personally can apply it -- you are simply imposing your own will. Undue burden, anyone?

So what is Justice O'Connor's latest, greatest project? According to a New York Times article (via Bench Memos), "Justice O'Connor is helping develop a Web site and interactive civics curriculum for seventh-, eighth- and ninth-grade students called Our Courts (" O'Connor was speaking at a "Games for Change" conference in New York. That's "change" as in "social change," by the way, as you can tell from the organization's site. The site offers you the chance to play a game called "ICED! I Can End Deportation," described as "an online interactive 3D Role Playing Game that teaches the player about the current U.S. policies around immigration that destroy families and fundamental human rights." Even better, you can play "PeaceMaker," a game that "is inspired by real events in the Israeli-Palestinian conflict." The description adds: "It challenges players to succeed as a leader where others have failed: bringing peace to the Middle-East. Playing both perspectives, players could experience the joy of winning the Nobel Prize or the agony of plunging the region into disaster." Who needs a game for this? The solution is easy: all the Jews should die, right?

Getting back to Justice O'Connor's "Our Courts" civics project, her hope is "to foster a deeper understanding of American government among schoolchildren." Great, but here's the very large chip that she carries on her shoulder:

"In recent years I have become increasingly concerned about vitriolic attacks by some members of Congress and some members of state legislatures and various private interest groups on judges," she said in her speech. "We hear a great deal about judges who are activists, godless secular humanists trying to impose their will on the rest of us. I always thought an activist judge was one who got up in the morning and went to work."
Allow me to translate: Judges don't want to be criticized for their decisions, certainly not by some yahoos on the political right. In their view, or in O'Connor's view at any rate, criticism threatens the independence of the judiciary.

Now, right about now, you're probably thinking: "Didn't she and Justices Kennedy and Souter say something a lot like that in their joint opinion in Planned Parenthood v. Casey back in 1992?" Well, I'm glad you asked.
But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.
It's easy to be a cynic, but Justice O'Connor's purpose for training kids in civics seems to be to prevent the kids from growing up to criticize the judiciary.
"The overwhelming consensus coming out of that conference [in 2006 on the state of the judiciary] was that public education is the only long-term solution to preserving an independent judiciary and, more importantly, to preserving a robust constitutional democracy," she said. "The better educated our citizens are, the better equipped they will be to preserve the system of government we have. And we have to start with the education of our nation's young people. Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do."
I guess it's no wonder Justice O'Connor receives such fawning press. The press, after all, has the same mindset: Criticize us, and you threaten the First Amendment.

I'm struggling a little to decide whether this attitude is the product of elitism or a simple desire for unchecked power. I'm leaning to the former, but I could be wrong.

But whatever the answer, I guess it's well past time for me to stop threatening the independence of the judiciary with this post.