The latest critic of a Supreme Court ruling turns out to be the justice who
supplied the key vote in its favor: Sandra Day O'Connor.
Addressing a legal conference in Texas, the former associate justice of the
U.S. Supreme Court had some second thoughts about her opinion in Minnesota
v. White back in 2002, which struck down that state's restrictions on
judges' expressing their political views in campaigns for the bench.
The case was decided 5 to 4, and Justice O'Connor's concurring opinion made
all the difference. Renowned in her time on the court as its swing vote,
she's now swinging back.
What do you suppose has changed her mind, or at least softened her opinion?
Well, the former associate justice has been on a crusade since she left the
court. She's concerned about threats to the independence of the American
judiciary, as all of us should be. As usual, the threat comes from those who
believe we the fickle people should be able to repeal unpopular decisions at
will, or recall judges who deliver unpopular opinions, and in general
subject fundamental law to the transient moods of ever shifting public
opinion.
It may have occurred to Mrs. Justice O'Connor, too late, that judges, too,
can threaten the independence of the judiciary. Because when judicial
candidates start holding forth on the issues of the day, they become like
all other politicians, and the judiciary becomes just as politicized as the
legislative and executive branches of government.
There's a reason judges, like military officers, accept restrictions on
their political speech. Because they have the personal dignity and political
impartiality of their profession to uphold. When the judiciary is no longer
considered above the passions and machinations of ordinary politics, neither
is the law, and something of inestimable value is lost to a society that
rests on the rule of law.
Justice O'Connor says she isn't in the habit of revisiting her opinions on
the bench, but it sounds as if she's making an exception for this one.
Minnesota v. White, she notes, "has produced a lot of very disturbing trends
in state election of judges."
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