Posted: December 1, 2003
t might seem a rather daunting challenge to publish a book on "the law" while still sitting on the Supreme Court. Those who have claims before the Court look for an open-minded consideration of their arguments. In setting out personal views of the law, on questions not yet before the Court, a justice might well appear to be prejudging such arguments. During confirmation battles, in recent decades, senators have often tried to pin down a nominee's views on abortion or affirmative action or some other controversial issue. Nominees have almost always declined to offer direct responses, citing their need to retain an open mind on future cases. Can a justice really share more with the reading public than with questioning senators? Let it be said for Justice O'Connor that she does not disappoint expectations in this volume of "reflections." She says almost nothing that would give away her positions on a future case. She does not defend particular doctrines. She scarcely develops any definite ideas. This is a volume of moods and impressions. A self-portrait of an aging justice rather than a book about law. As the subtitle says, it is a book of "reflections."
But Justice O'Connor is a particularly important figure for Court watchers. Her changing moods can make or break a case in the closely balanced Rehnquist Court. Last June, for example, we learned that law schools may organize their admissions around racial criteria for the sake of "academic diversity" but undergraduate admissions may not do so by employing a twenty point bonus for belonging to a racial minority—since Justice O'Connor and four liberal justices found the former practice quite acceptable, while Justice O'Connor and four conservative justices found the latter to be unacceptable, in two cases which were both defended in the same terms by the same university (the University of Michigan). In the past, Justice O'Connor's changing moods gave us the rule that states may impose a one-day waiting period for abortion (as Justice O'Connor and four conservative justices held inPlanned Parenthood v. Casey) but may not impose restrictions on the gruesome partial birth abortion procedure (as Justice O'Connor and four liberal justices held in Stenberg v. Carhart).
Judged simply by the frequency with which she ends up on the winning side, O'Connor is certainly the most decisive member of the Rehnquist Court. Measured by adherence to any clear argument or doctrine, she is probably the most indecisive. The purpose of this book, it seems, is to reassure us that she is, in any case, a nice person.
The book is a hodgepodge of topics—a little about the Court's history, a little about some famous justices, a little about judicial procedure, a little about how our Supreme Court is or isn't like courts in Mexico and other countries the justice happens to have encountered. There is also a little about Magna Carta and some other highlights of world history. Justice O'Connor never stays on a topic for more than a few pages, so she manages to cram 28 diverse chapters into less than 280 pages. Perhaps there is some "reflection" in that.
So, for example, Justice O'Connor tells us that Justice Thurgood Marshall was a wonderful "raconteur." Marshall, we learn, used to tell other justices about his experiences as an attorney for the NAACP, battling racist juries in capital cases. Some of the stories are affecting. After reaching the Supreme Court, Marshall claimed that all death sentences must be deemed in violation of the Constitution. Justice O'Connor does not subscribe to that opinion. She doesn't tell us whether she agrees that Justice Marshall properly served his office as justice by extrapolating from his own experience to a general doctrine so manifestly at odds with the actual provisions of the Constitution (which clearly acknowledges a role for capital punishment in half a dozen provisions). She also doesn't tell us what she thought about his practice of failing to recuse himself when the NAACP appeared before the Court—and never failing to endorse its arguments. She doesn't really mean to give us an assessment of Justice Marshall. The point of the chapter seems to be that Justice O'Connor was properly moved by his moving stories.
She also manages to say some nice things about Lewis Powell and about Warren Burger, though they are not exactly kiss-and-tell revelations. For the morbidly curious: Justice Powell was a "fine dancer" and Chief Justice Burger really believed that law schools must emphasize legal education. Of course, that's only part of what the curious may learn in these sketches. But O'Connor's portraits of these relentlessly mediocre justices did not leave me with more curiosity about their subjects.For some reason, the portraits of safely dead colleagues do not include Justice Harry Blackmun, author of the Court's decision in Roe v. Wade. Yet, as the Index reminded me, there was a mention somewhere of "Bulgaria" ("independence of judiciaries in"). You can't say Justice O'Connor shrinks from confronting the tough issues.
Actually, she concedes early on that abortion is "still hotly debated.... No one, it seems, considers the Supreme Court decision in Roe v. Wade to have settled the issue for all time." She finds this quite proper: "A nation that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders." I believe that, too.The question is why Justice O'Connor believes it. Later on, she remarks that "because Marbury established the courts, and especially the Supreme Court, as the final arbiter of the constitutionality of all acts of government, it is possible for an aggrieved individual to win a victory in the Supreme Court that neither Congress nor the executive branch can take away." Actually, Chief Justice John Marshall never claimed, in his ruling inMarbury, that the federal courts were "the final arbiter of the constitutionality of all acts of government." One could hold that the Court's determination in the case of a particular "aggrieved individual" must be respected and still hold that the Court's reasoning should be challenged. That was Lincoln's position on Dred Scott.
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Justice O'Connor's view seems to be that the Court can indeed be challenged—just not too much. She does tell us that the Court in Roe addressed "a question that has deeply divided the American public: the breadth of constitutional protection for abortion rights." Her formulation leaves "the breadth" of "abortion rights" up for grabs but not their underlying existence. Justice O'Connor has wavered a good deal on how broad they are but not on whether they exist. And as the Casey case explained, to challenge the underlying right would be to challenge the Court's legitimacy and thereby to challenge the rule of law. You can ask the Court for fine-tuning but you can't ask it to admit it was wrong.
Or you can, if you are on the side of "progress." In a chapter on "The American Judicial Tradition" (a rather big topic for a 14-page, two-century tour), we learn that by the end of the nineteenth century "the federal judiciary was so powerful that certain judges' view of broad provisions of the Constitution led the courts to invalidate a range of congressional and especially state legislation." Ultimately, as Justice O'Connor tells it, the arguments of jurists like Holmes and Frankfurter prevailed and the "judicial restraint...view of the judicial role triumphed"—when it came to "considered and needed change." Judicial restraint is "not, as critics may argue, to be confused with...opposition to 'progress.'" The quotation marks are intriguing. Perhaps some measures advocated in the name of "progress" do not serve the country well? Perhaps they might transgress boundaries imposed by the Constitution?
But O'Connor promptly retreats from that disturbing thought. "In the twentieth century the states and Congress increasingly were able to confront a broad range of social problems. Their constant experimentation led to labor legislation, environmental laws, regulation of many aspects of the economy and a vast array of social programs. While many in our society may disagree with particular measures, a broad consensus has formed that judges will not pass upon the wisdom of these measures." The courts should not rock the boat where there is a "broad consensus" that they should not.
Except that "our nation's judicial tradition" also embraces "adherence to the Rule of Law, even when that adherence draws widespread popular opposition." We can learn from Holmes and Frankfurter that "judges should not interfere unduly with the democratic process." But we must also recognize "the true meaning of courage and commitment to the Rule of Law" in the decisions of lower courts enforcing Brown v. Board. Justice O'Connor really likes Brown v. Board. It gets mentioned 13 times in this book (where Marbury, her second favorite, gets mentioned only four times). How does the counsel for restraint fit with this demand for "commitment to the Rule of Law"? A cynic might say this flatters the bias of contemporary liberalism—that courage should be applauded when exercised on behalf of liberal causes but deference and restraint are essential in regard to all other causes. Perhaps she has not thought this out very well. Perhaps falling back on liberal platitudes is simply the effectual meaning of not thinking things through.
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O'Connor has probably ruffled most feathers among liberal commentators by standing up for the rights of the states. Federalism, she says, "holds that the states are powerful sovereigns nearly equal to the national government." But "the Bill of Rights triumphs on many occasions overâ€¦federalism" as over "the democratic rule of the majority." She treats "the federal/state balance" as if it were a matter of courtesy between officials of "nearly equal" authority. But of course, they aren't nearly equal. The laws enacted by the federal government are "supreme," as the Constitution, itself, stipulates.
The question ought to be why the Constitution authorizes federal action in some areas and not others, or what benefit there is in not allowing all policies to be set at the federal level. That question doesn't break the surface here, perhaps because it would force O'Connor to explain why the federal government should stay out of certain issues. The answer might be that citizens who want less regulation or less taxing and spending can get their choice in some states. But that seems an answer she doesn't want to broach. Perhaps it would raise the question again about the quotation marks around progress.The most alarming and characteristically thoughtless part of these "reflections" deals with international law. Justice O'Connor tells us she has learned a lot from visiting with other judges. And she has noticed the proliferation of new international institutions—though not, it turns out, paid a lot of attention. "When GATT was first drafted in 1947, there were approximately 31 signatories." Actually, there were 23—but the "approximately" might cover that. (Anyway, it's worse that she earlier speaks of the "Fourteenth Amendment, adopted in 1870" when it was adopted in 1868 and gets rather more attention in her Court than the GATT.) She burbles on about "the European Court of International Justice" (a mysterious entity evidently created in her mind by the convenient consolidation of the European Court of Justice in Luxembourg with the International Court of Justice in the Hague—though they have little more in common than residing on the same continent).
"We will face" new "challenges," as "international agreements proliferate and grow more and more relevant to the legal issues that have traditionally come before the Supreme Court." Should we be alarmed by this trend? Justice O'Connor concludes that "in the new century, dramatic changes in the geographic and economic borders that have separated the United States from the rest of the world will alter our society even more fundamentally." I have no idea what she means when she talks about "dramatic changes" in our "geographic borders." I don't even know what she means by "economic borders." She hopes that "we will play a leading role in finding better means of resolving issues and common concerns with the other nations of the world." I don't like the sound of that, but I admit I have no clear idea what she means by this statement, either.
Justice O'Connor remarks, earlier in this volume, that it is not necessary to "envision litigation as war, argument as battle, or trial as siege. Argument, for example, can be conceived of as discourse." It seems to follow that court decisions need not be conceived as the exercise of authority but as dialogue with the community. Perhaps her idea of international law is some sort of ongoing dialogue with other nations—an ongoing process of "resolving issues and common concerns" that makes it unnecessary to remember who has the last word on what.
Jean Bodin, the 16th-century French jurist who popularized the concept of sovereignty, used that term in the French version of his great treatise (souverainité) but in a Latin translation offered the term majestas. Soon every monarch in Europe wanted to be called "your majesty." To speak of "the majesty of law" was, at one time, to express the hope that law itself could exercise the ultimate authority once associated with absolute monarchs. Justice O'Connor seems to have a different idea.
It's hard to find any echo of "majesty" in O'Connor's rambling reflections. A more accurate title for this volume might have been The Triteness of Law or even, I'm OK, the Law's OK.