An ongoing topic at our house is what we call “Supreme Court Disease.” It afflicts conservative appointees after they get on the Court. Typically they start out as modest, careful jurists – students of the Constitution who are 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 years or so – sometimes less – we often find them “slip-slidin’ away” (as the old song goes). Little by little, over the years, they drift to the liberal side until they are far from their original roots. As media mavens like to say, they have “grown in the office.” Fortunately, this doesn’t happen to every conservative justice, but it has happened often enough to notice it. I know of no liberally oriented justices who went conservative.
A character in Arthur Conan Doyle’s classic novella, The Hound of the Baskervilles, had spent his entire fortune on bizarre court cases – some of them actually opposed to each other in purpose. He was proud of having won a legal decision to deny picnickers access to part of his land. But he had also spent vast sums to establish a walking right-of-way across his neighbor’s property. Justice O’Connor’s Supreme Court career approximated this. And her tenure helps to explain why we’re in such a mess with the Supreme Court today.
Sandra Day O’Connor came to the Court in 1981 because President Reagan wanted to appoint a woman. The media called her a “conservative,” but Arizona voters considered her “middle of the road.” Conservative pols warned that she would be an unreliable vote. 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 still 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 opposed a bill prohibiting abortions at the University of Arizona Hospital (although she did vote 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. (Where, they asked, did the Supremes get the authority to decide how much court law-making is “necessary?”)
Justice O’Connor 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), for instance, the Court approved racial affirmative action at the University of Michigan’s Law School (by 5-4 vote). For 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. And diversity’s “educational benefits” were not identified.)
Justice O’Connor 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 addendum was simply the “world according to Sandra.” And the number “25” was essentially pulled out of her left ear. College Diversity VPs 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, 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 voted to ditch 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 neither implicit nor explicit mention of homosexual sex – or any other kind of sex – as federal concerns. Under the 10th Amendment, communities have always regulated sexual behavior according to local standards. In the public uproar raised by the Lawrence and Garner ruling, some conservatives argued that justices who cite foreign law to support their decisions should be impeached, as such action violates their oath of office.
In June 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,” wrote Justice David Souter 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.
After Justice O’Connor announced her intention to retire, liberal news organs sang paeans of praise to her “independence” and “common-sense approach” to the law. She was lionized as “the most powerful woman in America.” Liberals insisted that she 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 models Supreme Court Disease perfectly, and demonstrates 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. Not even the president – elected by a majority of the electorate – can 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. Congress-people have been derelict – at least in part because they like having the Court do the heavy lifting on messy issues like sex, racial preferences, and religious displays.
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 was touted as the greatest political battle since…what? Perhaps since FDR bullied the “senile Court” of 1937, and threatened to pack it if its superannuated justices didn’t step down? Or perhaps since the Civil War? Maybe there hadn’t been a battle as great as this because the stakes had never been so high and the Supreme Court had never been so far out of control.
In January 2006, after a vigorous Senate-debate, Justice Samuel Alito was confirmed to replace Justice O’Connor on the Court. Of course, his confirmation “debate” was a mere skirmish, compared to what was coming for later nominations by Republican presidents.
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 Speaker Nancy Pelosi along these lines are instructive. Of the “eminent domain” decision several years ago, she said, “…a decision of the Supreme Court … is almost as if God has spoken.” (Did she think 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 stake any 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. It is a very serious matter.
A Washington Post headline at the time read, “O’Connor was the Pivotal Justice in a Polarized Society.” A mere quarter century earlier she had sailed through confirmation with nary a probing question. She received a unanimous vote, after which she “ruled” – largely out of her own imagination – on many contentious national issues. Some rulings left important matters for others to settle. If society is polarized now, at least some of it is due to Madam Justice’s labors.
We need to be wary about whom we promote to this rarified office, and we need to start taking steps to curb its all-powerful status. If we appoint many more justices like S. D. O’Connor, the hoi polloi will figure out that they’re no longer governing themselves. And when they do, they will rebel. When that happens, there will be a good chance that the Constitution will be shredded and our entire system of government will go down the tubes.
Some moves in that direction are already being made by the quartet of radical Congress-gals called “the Squad.” As advance-riders on that coming wave, they are raising hell because the Supreme Court is no longer going their way. The signs and portents are not auspicious.