''This is much ado about nothing,'' she said in response to a question by moderator Tim Russert of NBC. ''Our Constitution is one that evolves. What's the best way to know? State legislatures -- but it doesn't hurt to know what other countries are doing."O'Connor also said she reads 1,500 pages a day. Mostly lawyers' briefs, I presume. The life of a judge! Do you envy it?
April 22, 2005
Not incredibly outrageous.
Justices O'Connor, Scalia, and Breyer took part in another one of those discussions about whether it's okay -- or "incredibly outrageous" -- for judges to refer to foreign law. We've already heard plenty from Scalia and Breyer on the subject, so the article (in the NYT) focuses on O'Connor:
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15 comments:
Thats interesting... and here I thought our Constitution evolved by beign amended through the democratic process. Silly me.
The interesting thing to me about that quote is that she removes her own agency. She doesn't say "I have decided to interpret the Constitution so that it can evolve." It's just out there, evolving, and she observes that it has evolved. Oh, look at that. It's become something different. She ought to defend the notion of a living Constitution, so that people like Nick who haven't studied law will be able to understand how it is justified.
That's exactly right Ann... I haven't studied law... yet I still have to live by it don't I? My only experience is having to take Business Law in college... which I only remember some of.
And while I certainly like to think I know a few things about how the constitutional process works... and the fact that it does evolve not only through amending... but also through interpretation... its important to have the discussion in a frank and clear way, so we can all understand what is happening, because we all have to live by the consequences, not just the lawyers.
And I shouldn't have gone on commenting here... especially in my normally sarcastic tone. Sorry about that. I've hopefully been a little more clear in my post. Have a great Friday.
Nick, you're welcome to comment. I was genuinely chiding O'Connor for not making her comment in a way that anticipates your criticism (which is, of course, the same criticism Justice Scalia makes).
I had the opportunity to hear Justice Sandy speak last year out here in the boondocks. I'm not sure what to make of her as a supreme jurist, but she sure had an interesting early life. I just had to rather like her personally.
twwren:
And when the other two branches of government enact laws that are beyond their Constitutional authority... what happens? What recourse have we but to go to the courts?
The problem with what she said is that it could easily be taken out of context (or perhaps read correctly) and provide fuel for those who are suspicious of the way the court acts. Enough of that occurs based on decisions the court makes without these kind of "casual" remarks. I suppose it does "evolve" and should evolve as Chris points out but its not "much ado about nothing"
(diff Chris than above) I just happen to like how the "evolving Constitution" only tends to "evolve" in one direction. Funny that.
As for the defense of the "living Constitution"--it's only defensible in the most cynical sense since such a theory would never permit a reinterpretation that counters the prevailing left-liberal interpretations that such a philosophy requires.
So yeah, it's defensible--it's just not principled (insofar as a commitment to democratic principles is concerned).
In my view, too many people on the right complain about the Supreme Court justices being "unelected" and "unaccountable" and "appointed for life," while at the same time complaining about how the judges don't strictly adhere to the wishes of the Founders. The founders wanted a independent judiciary, free from political intimidation and influence, filled with judges steeped in the common law tradition. Lifetime appointments help ensure independence. That is something on which everybody agrees.
Most of the world envies our independent judiciary. The Supreme Court currently has five conservatives and four liberals. That seems pretty fair to me. Would you rather have it be otherwise? Would having more conservative justices result in more fairness? Would having more liberal judges result in more fairness? I don't think so.
The right-wing talk-radio crowd uses the word "activist" as if it was a synonym for "liberal," except for the occasions on which they use it as a synonym for "gay." They look past the fact that Supreme Court activism put George W. Bush into office in the year 2000, which made conservatives happy, and Supreme Court restraint in the Terri Schiavo case is what touched off the current wave of anti-judiciary hysteria.
Perhaps they should come up with a consistent meaning for their codewords before they throw them around. Or perhaps they shouldn't use codewords at all. Or perhaps they should just trust a desperate, power-hungry exterminator from suburban Texas to interpret the Constitution for them. After all, I'm sure that is what the Founders would have wanted.
My point was not that the Founders wanted a judiciary independent of the Constitution, only that they wanted a judiciary independent of the sort of political pressure that Congress is trying to bring to bear on them today. The Founders didn't want members of the House to threaten impeachment, or make thinly-veiled threats of violence against Supreme Court justices every time a ruling differed from the teachings of the Bible.
When a judge rules against prayer in schools, that judge is labelled activist. When a judge prevents a woman's parents from getting in the way of her right to go off feeding tubes, they are labelled activist. I could go on . . . these decisions aren't activist by any objective rationale; they are only objective because Limbaugh and Falwell and others decide to call them liberal. They call names because they can't prove how these decisions deviate from the rule of law.
twwren:
While Hamilton does not use the words "judicial review" outright in Federalist #78, I would like to point out that it established the role of the principle in the Constitution itself.
That being said, I do not believe that judges are being "activist". For one, they can only rule on cases brought before them. Whether a judge is "activist" seems to be purely a matter of perception. Read this article titled Addicted to the Courts.
Neuborne concludes:
"Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic--which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance."
I don't believe the judicial system is the one being activist. I put the blame on those using the courts, rather than the democratic process. Even if their grievances have merit and can be remedied via the judical system, the question is whether it should be used that way.
twwren:
Answer me this (And I'm going to repeat myself). When the other two branches of government enact laws that are beyond their Constitutional authority, or infringe on the rights it protects... what happens? If the courts do not have the power of judical review, what other solution is there?
twwren:
Thank you for clearing that up.
There is absolutely no way that Justice O'Conner reads 1500 pages per day. At least, not if a) these are technical, legal papers, and b) if there are more than 3 words per page.
1500 is a heap o pages, baby. I'm a pretty fast reader, and to plop down a 300 page Wodehose novel (I know in advance that Jeeves will pull Bertie's bacon out of the fire) is the work of an afternoon, or day. And nothing critical is riding on my understanding.
1500 pages? seems somewhat exagrerated. Unless we are willing to concede that she doesn't understand what's on the pages she's turning.
Not that far fetched, given some of the decisions the Court has reached.
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