March 11, 2006

Why I haven't blogged about Justice O'Connor's speech.

People keep emailing me the link to this NPR report on a speech that Sandra Day O'Connor gave at Georgetown the other day. I assumed I would blog about this speech yesterday after some of my students brought it up. So let me explain why I didn't blog about it. We don't have the full text of the speech, just Nina Totenberg's summary, and it seems to me that everything in it relates to stories that were current last April, which I blogged about back then quite extensively. In a long post titled "Stirring up hatred against judges," I wrote (in part):
People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence....

The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment....

DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.
I continue the discussion the next day in "Judicial politics." The next post, "Congress and the judiciary -- with a response from Justice Kennedy," acknowledges that Justice Kennedy had addressed the subject. (He said, when pressed as a House committee hearing that "disagreements over the meaning of the Constitution were 'a very important part of democratic dialogue.'") There's a fourth post on the subject here.

Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.


Wade Garrett said...

Though some of the incidents Justice O'Connor mentioned in her speechare almost a year old, this, as far as I can tell, was her first big public speech since she left the bench. She didn't have a public going-away ceremony of any kind, so this was her first chance to get that stuff off her chest, as it would have been improper for a sitting justice to do so. Its noteworthy, in my opinion, for two reasons:
1) Justice O'Connor is almost universally respected
2) She is the rare former Justice who is young enough and healthy enough to still play a public role.

The DeLay and Cornyn speeches might be old, but don't expect them to stop, and don't expect the role of the judiciary not to be an issue in the 2006 election. And her warnings against dictatorship refer to very recent events, such as, oh, I don't know, the executive branch creating secret prisons where they torture people. I hope that every time a GOP reactionary opens his big mouth about the activist judiciary in the '06 election season, Justice O'Connor is there to slap him in the mouth.

South Dakota just passed an explicity unconstitutional abortion law. How much do you want to bet that the district and Circuit court judges who uphold that law are decried as activists, and receive death threats? These events are far from over.

Robert Holmgren said...

It's always a good idea to wait for the full text--especially with Nini Totenberg doing the summarizing. You can bet that a speech given by Scalia, in which he lambastes over-the-top Democratic criticism of judicial nominees put forth by Republican presidents, would get the Nina nod. In that case Nina would lambaste Scalia for a shrill attack on democratic institutions. Nina has the knack for knowing how to do an NPR style report.

Simon said...

I agree with Bob. I always listen to NPR while commuting, which for a Republican means having a pretty effective bullshit filter in place, but even so, I was shocked by how nakedly partisan (and frankly, flat-out inaccurate) Totenberg's reporting was during the Alito hearings. Now, I knew that this was the case, of course, because I watched the real McCoy, live, but the experience has necessarily led to hightened scrutiny - a presumption that anything out of her mouth is wrong and framed to reflect her agenda, unless demonstrated otherwise.

If youy want my opinion, they need to fire Totenberg and hire Jan Crawford Greenburg; I don't have any idea what Greenburg's politial views are (you have to presume a Democrat), and since I make a point to seek out commentary from her, I assume that means she can actually present a report neutrally enough that I don't notice it.

sfletcher99 said...


Your comment-- It is really a shame how little people understand of the reasons judges decide cases the way they do.

(...followed this passage from the embedded article) "Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18."

I remember that a lot of people easily understood the written arguments offered by the Justices in this case--- rather than finding any precedent justifying their decision based on our Constitution, the majority instead chose to cite both "foreign" opinion and "foreign" precedent.

Believe me, we understand!- we just don't like it...

Wade Garrett said...

Fletch - No, I don't think you do. The clause in question is "cruel and unusual punishment," correct? Simply because your political allies choose a medieval interpretation of that phrase instead of a plain-english, 21st century interpretation of that phrase, doesn't mean that your reading of the Constitution is any more valid than that of the majority of the Supreme Court.

mtrobertsattorney said...

Bob, you are 100% right on Nina Totenberg. Her lack of ability to understand and accurately report on a Supreme Court opinion is an embarrassment. She is one of those people who don't know that they don't know.

I'm with Simon; NPR: hire Jan Crawford Greenburg pronto.

KCFleming said...

Re:"Groups of 2 are different from groups of more than two when we think about what is fair. That's my point. Address that."
I based my comment on the assumption you'd made buttressing that argument, which stated
"Legal marriage isn't just about love, it's an economic arrangement." I feel that definition is itself arguable, so your main point doesn't necessarily follow. That is, whether two or more-than-two is a matter of fairness is a misunderstanding of marriage, as many people see it. You disagree, and I suggest that, once traditional norms are rejected, others will disagree with you that 2 is fundamentally different than >2.

But to your point, corporations are examples of legal entities of more than two people that confer economic benefits, an arrangement widely accepted as fair. Polygamy could be viewed quite similarly.

Re:"First, the rearing of children can be accomplished without marriage, and often is."
Of course it is; but you've missed the point. No method is equal or superior to the method of raising children in a heterosexual two-parent married household. That is the verdict of thousands of years of societal arrangements. You are free to theorize otherwise, but the traditional arrangement exists for a reason. It wasn't random chance.

Re:"changing the definition of marriage somehow affects the raising of children is rather a straw man: one thing has nothing to do with the other."
You make my previous point: your definition of marriage supposes no connection between marriage and child-earing. My definition is shared by many people, and it posits that the primary purpose of marriage is child-rearing. That does not mean that children must be raised in every marriage, but rather that for society to successfully endure, heterosexual marriage is a necessary component, and children must be produced in the vast majority of them.
Re:"If European women were having sufficient amounts of children out of wedlock to grow its population (the so-called "replacement number") instead of caviling about fecundity you would be complaining about immorality."
I would, because shaming unwed mothers is part of the social process by which people are kept in marriages, for the good of society. It has worked well in the past, even though you dislike it.

Re:"What matters is that kids are raised by people who love them, not the sexuality of the parents doing the raising, or the marital status of the kids being raised."
Would that it were true. But it is entirely false, every word, including "or" and "the".
Re: "If that were the currently understood purpose of marriage, we would need to either (or both): 1) require fertility tests prior to marriage, 2) institute policies that punish single parenting." False. It is sufficient that most marriages result in children. Societies do die out for lack of reproduction. It's happening in the EU, as the European population is replaced by the far more fertile Muslim immigrant population. In addition, shaming infertile people was common. This was intended to favor fecundity, whether you are in favor of it or not is immaterial. Societies that fail to reproduce themselves whither away.

Re: ” Pogo and others would have us forget ….widespread divorce.”
Hardly. Widespread divorce is part and parcel of the dissolution of marriage itself, of which gay and polygamous marriage will play no small role. They will lead to reduced fertility and less successful child-rearing, and then the death or takeover of society by another social group that rediscovers how high fecundity in the context of heterosexual marriage leads to demographic control.