Sunday, July 03, 2005

Sandra Day O'Connor Vaunted as an 'Independent Jurist'

One problem I have with the coverage of retiring U.S. Supreme Court Justice Sandra Day O'Connor is her portrayal as an independent jurist simply because she was often a "swing vote" on heated issues before the court like school prayer and abortion rights.

Here's the problem with that: just because a judge seems to lie on the left or right, doesn't mean he or she isn't equally independent in thought. Take David Souter, who the Republicans expected to be a shoe-in, a "stealth" conservative, since he hadn't written many opinions on hot-button issues. Souter's votes now provoke great resentment among Republicans.

Many judges throughout history have voted in ways that upset the people who appointed them, and just because they lie on a certain part of the political spectrum doesn't mean they should be thought of as less independent than someone who is "moderate." Judges certainly have political views like everyone else, but they also are supposed to interpret the law independent from those views, and if they can do that, that makes them independent in my mind.


Chris said...

I don't think she can be classified in the liberal-moderate-conservative spectrum. She was "independent" because she ruled based on HOW SHE FELT about individual cases. Such a "judicial philosophy" leads to inconsistency, contradiction, and total randomness that befuddles a lot of people. So, she kind of ruled "independent" from constitutional law.

A Question, though, on which I woul love to hear your thoughts: I would assume you do not think Scalia, Thomas, and Rhenquist are independent. How about Stevens, Breyer or Ginsberg?

Elaine said...

I would assume you do not think Scalia, Thomas, and Rhenquist are independent.

See, I think Scalia is definitely independent, Rehnquist I know less about, Thomas to me has always seemed pretty clingy to Scalia. I don't think the media is reporting that O'Connor ruled "independent from the Constitution" as you say, but rather that she ruled independent of a political ideology and thus is independent.

However, to me this kind of reporting kind of implies that the rest of the court is full of shills because their voting patterns more consistently support left or right viewpoints.

I guess I would classify independence as being able to interpret the constitution as impartially as possible. In my opinion, Stevens, Breyer, and Ginsburg fit this definition pretty well. I don't agree with how Scalia interprets the Constitution much of the time, and I think he has had severe moments of non-independence (Bush v. Gore), but I think he has proven independent on other rulings (eminent domain, flag burning).

Don't get me wrong, I don't think any of the SCotUS can be perfectly impartial, because what each of them have done and their general life experiences have probably shaped their approach to the law (Scalia a professor, Ginsburg a women's rights lawyer, Breyer as an anti-trust lawyer, O'Connor unable to find a job as a lawyer after law school because she was a woman, etc.) I just think they should do their best.

Chris said...

Wow...after our marathon debate yesterday, we agree again.

I agree the media is reporting here as a political independent, and they classify SCOTUS judges far too easily and lazily. My comment was just to provide the view of certain conservative who see beyong the media's classification and see that her independence is not what the media describe.

Elaine said...

Ah, I see. Good point. I agree, the media is far too quick to put labels on justices and see them as legislators rather than interpreters.

Like I would disagree with their medical marijuana decision based on my own personal views but agree on the ruling because of the fact that California's law conflicted with federal law. One might classify the judges as to the outcome of their decision--pro-drug control, but, IMO, this is the wrong approach in reporting how the Court works. (Again, not that I think the judges are totally above politics all of the time).

But yeah, I guess since we agree, no 23 comments on this entry!