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."
She was doubtless referring to the unseemly electioneering, complete with vicious advertising, that has started to characterize judicial races across the country in the wake of Minnesota v. White.