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 O'Connor has since been replaced by conservative Justice Samuel Alito, who voted last month for the ban.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.
Posted 10:29 AM by Brian Tamanaha [link]