Balkinization  

Thursday, May 24, 2007

Former Justice O'Connor Defends (and Criticizes) the Court--And More on the Lack of Respect for Constitutional Law

Brian Tamanaha

Former Justice O’Connor gave an interview last week on Fox News that defended courts generally, while implicitly criticizing a recent Supreme Court decision.

Here is an excerpt from an Associated Press report:
Retired Justice Sandra Day O'Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go.

O'Connor, a swing vote in favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent months of state and federal court decisions.

The vast majority of the criticism, she said, is unjustified and borders on harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed with.

But federal courts, too, play a role in fostering public credibility by generally adhering to stare decisis, or settled precedent, O'Connor said.

"Obviously, that is a concern," said the Reagan appointee who retired early last year. She responded to a question in a broadcast interview about the public's perception that the Supreme Court based its decisions more on politics than principle and whether that belief undermined the Court's credibility.

The law "shouldn't change just because the faces on the Court have changed," she said.

Her comments come a month after the high court changed course on abortion, upholding a national ban on a midterm method of ending pregnancies known as "partial-birth abortion." It was a 5-4 decision that opened the door for states to pass additional abortion restrictions.

Liberal and some conservative legal experts have criticized the decision as disturbing and inconsistent because it seemed to defy a virtually similar 5-4 high court case in 2000.

In the 2000 case, O'Connor was the key vote in striking down an abortion ban that placed an "undue burden" on a woman's right to choose. O'Connor has since been replaced by conservative Justice Samuel Alito, who voted last month for the ban.


Atlhough I share her concern, these comments by Justice O'Connor strike me as odd in several ways.

One might well agree that the law “shouldn’t change just because the faces on the Court have changed,” but it seems rather late in the day to make such an assertion. Absolutely everything about the contemporary Supreme Court, from the ideologically infused appointments process, to the many split decisions along predictable political lines, to the politically driven parsing of opinions, is premised upon the fact that the faces matter at least as much as, and often more than, the words of the Constitution. Anyone inclined to deny this—does anyone deny this?—need merely recall the monumentally consequential Bush v. Gore decision, which was all about the faces on the court.

Apart from this evident reality about the Court, it is especially odd to hear Justice O’Connor voice this objection. As the proverbial swing Justice during the last few years of her tenure on the Court, it might be said (with some exaggeration) that her face was the Court, at least in many pivotal cases. And it is not clear that Justice O’Connor adhered to a consistent supra-personal approach to constitutional interpretation. Her constitutional interpretation compass, whatever it was, was uniquely hers. Given her swing position and her particular approach, it was inevitable that her departure would result in a number of changes in constitutional interpretation.

A few constitutional law scholars might also challenge her normative proposition that a change in faces should not lead to a change in law: pointing out that such change is inevitable (owing to the open texture of constitutional language), so it is futile to rail against it, or pointing out that such change is necessary and beneficial in keeping the constitution up to date or in sync with prevailing political views (with occasional lags).

My view is that the situation is a terrible mess—how’s that for a sophisticated diagnosis!—and it’s getting worse.

This brings me to Professor Elhauge’s provocative dig at constitutional law scholarship, responded to by Professor Tribe and Jack below, as “the least intellectually respected among law professors because it is the most doctrinal.”

His premise is wrong—constitutional law scholarship is the most prestige laden preserve of the best and brightest in the legal academy, with plenty of intellecutal respect (and envy) from others—but a more important truth lurks within his assertion. Many law professors have trouble taking constitutional doctrine seriously because the doctrine often appears to be the product of and cover for the faces of the individual justices.

Constitutional doctrine, sadly, too often reeks of an exercise in bad faith or false reasoning, or at least it is seen that way by many. Hence, it is constitutional doctrine that does not get intellectual respect from many law professors, not doctrinal scholarship in the field (much of which is critical or skeptical of the doctrine).

That is yet another sign of our collective loss of faith in constitutional law.

Comments:

Brian, you're taking O'Conner's words too seriously. The key is: "But federal courts, too, play a role in fostering public credibility by generally adhering to stare decisis, or settled precedent." It's not about whether changing faces "should" change constitutional law, it's about whether the public "should" recognize that fact.

As you recognize, the discussion is about "Liberal and some conservative legal experts have criticized the decision as disturbing and inconsistent because it seemed to defy a virtually similar 5-4 high court case in 2000." The most important point about that is the number "2000". Change should happen slowly enough that we, the hoi-polloi, can not recognize that doctrine depends on people - otherwise we may lose "confidence", or in other word, the priests will lose their togas. If they had just waited for another five years, when the connection between Roberts' and Alito's installation and a changing Constitution were a bit vaguer...
 

O'Connor's complaints are amusing since she this ex legislator often had her finger in the political winds and her opinions read more like muddled legislative compromises which had little basis in a school of law.

O'Connor' is whining about stare decisis because they are her opinions which are not only under attack from citizens, but are being significantly modified by the current Court. With any luck, Casey will not be the only one of O'Connor's opinions which is significantly modified, if not reversed.
 

"That is yet another sign of our collective loss of faith in constitutional law."

Or perhaps in an erosion of faith in constitutional government, period. If we say that the Constitution has no existence and normative force outside what the "priests" in their "togas" say about it, then all we can hope for is what Bart seems to hope for: strike down priests we think are wicked and install priests more to our liking.

Nihilists about the Constitution always have an easier case to defend, simply because, when non-nihilists say, "But that's not constitutional," they can always say that the Constitution is just a bunch of words on paper. It's up there with people who conclude that, since religious experiences are instantiated as states of consciousness, they are nothing but states of consciousness-- a conclusion that, if true, takes some arguing. Religious experiences might, absent further argument, be intentional experiences of something real; the Constitution might be the sort of thing about whose meaning a person could be seriously mistaken. Just because I assert that Bush v. Gore was a bad decision, or Bart asserts that Casey was a bad decision, doesn't make it so.
 

The descriptive statement -- we have lost much of our collective faith in constitutional law -- is (unfortunately) correct. The normative prescription to correct this issue is much, much harder to find a satisfactory answer.

A major problem, by my lights, is that much law, as presently conceived, is not up to the task. Judicial opinions, esp. those dealing with the vague 14th Am clauses, do in fact many times read like rationalizations for a politically preferential outcome dressed up in legal jargon. Much scholarship reads the same way: criticizing or praising decisions based on one's priors. That is, skipping straight to the normative conclusion is many times really all "law" has to offer.

There are ways out: Prof Balkin's recent paper -- and i think history will judge me presciently when I say that this will be a seminal paper that fundamentally changes the originalism debate -- shows how "constitutional redemption" is one way out (although I don't think that true blue conservatives (e.g. John McGinnis) will be satisfied). There might also be an attempt to determine how the empirical evidence informs the issue at hand, rather than relying on lawyers' sense (hubris really) of intellectual competence at everything. One can hardly think of a more apropos example than Justice Kennedy's assumption that (and I paraphrase) "although we can't find any empirical evidence to support it, it *must* be the case that women are harmed psychologically by second term abortions."

Anyways, I think Prof Tamanaha's new book will try and answer this question for us. I'm looking forward to it.
 

Where I said "People who conclude that..." above, I meant to say "people who automatically conclude that..." My problem is not with the belief that religious experiences are non-veridical, but rather with people who fallaciously argue that their instantiation as states of consciousness is sufficient reason alone to declare them non-veridical. On that theory, no state of consciousness would be veridical! Similarly with people who seem to hold, without further argument, that the need to interpret the Constitution automatically entails that no one can be seriously wrong about its meaning (or, what is the same thing, that some people have exclusive authority to declare its meaning just because we feel comfortable with their political ideology).
 

are you writinng on a blog or penning a PhD dissertation in (neorealism?) philosophy?
 

From the post: She [O'Connon] responded to a question in a broadcast interview about the public's perception that the Supreme Court based its decisions more on politics than principle and whether that belief undermined the Court's credibility.

Well, then she shouldn't have signed on to the abysmally illogical and partisan (and cowardly and anonymous) per curiam in Dubya v. Gore.

Show amends for that travesty, Sandra, and I'll cut you some slack to complain.

Cheers,
 

Retired Justice Sandra Day O'Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go.

Oh really? Should the Court follow its prior ruling in Bush v. Gore? Ah, I'm guessing that's where the word "generally" comes in. Sandra Day O'Connor's legacy is a judicial coup d'etat. It is telling that she has to turn to Fox News in a lame attempt to rehabilitate her image. Too little, too late, Justice O'Connor. You'll go down in history as the woman who gave the world George W. Bush.

Heckuva job, Sandy.
 

Post a Comment

Older Posts
Newer Posts
Home