Three of the nation’s leading female judges gave important speeches last week. Two of them warned eloquently about the sorts of things judges should not do, or that the American people should not let judges do. The third speaker, lamentably, seemed to want to put judges above strong criticism.
Happily, that third judge is now retired. The other two, meanwhile, deserve serious consideration for the Supreme Court.
The disappointing speech came from Justice Sandra Day O’Connor to an audience at Georgetown University. The speech was not available for broadcast, but lefty NPR reporter Nina Totenberg was there. Unless Ms. Totenberg merely heard (and reported) what she wanted to hear, and thus skewed the intent of Justice O’Connor’s speech, the justice sounded less like a conservative or even a centrist than like a disciple of the late liberal Justice William Brennan.
“In an unusually forceful and forthright speech,” reported Totenberg, “O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedom.” Totenberg said that O’Connor warned against tactics such as stripping a court’s jurisdiction or cutting judicial budgets as retaliation for decisions unpopular with political leaders — and O’Connor pronounced herself “against judicial reforms driven by nakedly partisan reasoning.”
The lady doth protest too much.
The far bigger danger these days is not that judges are faced with criticism, but that they are too often immune from critical reasoning. The mainstream media treats the judiciary not as the weakest of the three branches of government — which Alexander Hamilton described it as being — but as the province of demigods raining wisdom from on high. And few judges were as prone as Justice O’Connor was to substitute their own views of what constitutes wisdom for the far more restrained and proper interpretation of what the Constitution and laws actually say.
With so few formal checks on the power of the judiciary, the single most important and necessary weapon for keeping judges in check is the power of public criticism.
IN THAT LIGHT, SOME OF THE MOST effective public criticism of judges comes not from the political world but from other judges willing to try to hold their colleagues (and their egos) in check. Consider a speech that Judge Edith Jones of the Fifth Circuit gave last week to a Federalist Society meeting in New Orleans.
Jones, of course, is the judge most conservatives wish had been named to the Supreme Court back when the elder George Bush instead sentenced the nation to the result-oriented liberalism of David Souter. No written text of her speech was available, but extensive notes from sources present give a good sense of what she said.
Her topic was some judges’ increasing use — improperly so — of foreign sources to construe the U.S. Constitution. Just three years ago, when I wrote a piece called ” Forfeiting Sovereignty for Sodomy,” the topic had received almost no attention in the press or in public speeches. Now it is one of the hottest judicial topics in the land.
Judge Jones explained how it was that the first, almost innocuous, citations of foreign authority grew into their acceptance, and ever-more-rampant use, by a majority of today’s Supreme Court. Cleverly quoting Justice Robert Jackson’s dissent from the infamous Japanese internment case in 1944, Jones affirmed Jackson’s warning of how a rogue “principle” of jurisprudence “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.'”
So it was that a seemingly random dictum in a plurality opinion in Trop v. Dulles in 1958 concerning “evolving standards of decency” in death penalty cases grew until suddenly, in three cases in the past few years, citations of foreign law “exploded.” So much so, she said, that foreign citations have become utterly untethered from criminal justice issues and moved into issues such as affirmative action in education, as in the controversial Grutter case from the University of Michigan.
The problem, said Jones, is threefold: Such citations violate the original meaning of the “supremacy” clause making the Constitution the supreme law of the land; they violate the structural role of the judiciary by expanding the authority of judges beyond the parameters of U.S. law; and they create major functional problems because lawyers (and judges at any level below the Supreme Court) have no way of knowing what the law is because they don’t know which foreign laws or courts will be found applicable to current cases.
There was much more good stuff along these lines — and other conservative judges are hitting the same themes — but one more key line, quoted third-hand but I believe with substantial accuracy, was that a foreign law citation in U.S. courts, based on some “standard of decency” that is undefined and evolving, “involves the potential for the hijacking of self-government because the court is allowing itself to be influenced by self-appointed ‘human rights watchdog groups’ with no political legitimacy and no constituency.”
Hear ye, hear ye.
THAT LAST WARNING ALSO SERVED as one of the points stressed by Judge Diane Sykes of the U.S. Seventh Circuit of Appeals, in a March 7 speech at Marquette University — namely, that judges ought to observe “the prudential institutional caution that counsels against imposing broad-brush judicial solutions to difficult social problems.”
It is for good reason that young Judge Sykes (born in 1957) is on many handicappers’ short lists for the next Supreme Court opening. Her speech, a critique of the most recent term of the Wisconsin Supreme Court (of which she was a member until joining the federal appellate court in 2004), was a model of clarity, sound reasoning, and correct (humble, textualist) judicial principle.
Sykes made a compelling case that the Wisconsin high court in 2004-05 has, not just in results but in conventions of legal reasoning, made a radical (and dangerous) shift away from accepted norms. The cases, involving tort law and rules of criminal evidence and interrogation procedures, were quite important in themselves. For our purposes, though, what was most noteworthy about the Sykes speech was that the principles she espoused and defended are so equally applicable to federal courts as well as state ones, and that her explanations thereof were so clear and direct.
Thus it was a pleasure to read her text saying that “the court’s responsibility of judicial review is not a warrant to displace legislative judgments.” And: “The terms ‘modesty’ and ‘restraint’ — the watchwords of today’s judicial mainstream — seem to be missing from the Wisconsin Supreme Court’s current vocabulary…. The court has also manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court’s own precedents.”
And Sykes’ remarks were full of gems of the “gotcha” variety, such as when she criticized the court’s majority for straining too hard to show that the Legislature’s judgment did not proceed from a “rational basis”: “It takes the court seventy-nine paragraphs to get there. You’d think if a law were truly irrational, it would be simpler to explain why.”
Inherent in the themes of the speeches by both Judge Jones and Judge Sykes is the ideal that a good judge is the servant of the law, not its master. Judges such as Sandra Day O’Connor who ignore those warnings deserve to get their feelings hurt, and their wings clipped, by politicians who criticize the judges’ hubris. As Sykes said, when a court ignores the “long accepted principles that normally operate as constraints on the court’s use of its power,” it is only right that critics “sit up and take notice, and question whether that power has been exercised judiciously.”
If more judges were like Jones and Sykes, lack of judiciousness would never be an issue.