Attacks on Our Courts: Justice O’Connor’s Warning

Retired Supreme Court Justice Sandra Day O’Connor issued an ominous warning in March about attacks on judicial independence: “it takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.”

The Center for American Progress, the Human Rights Campaign, and the American Constitution Society brought together a panel of four experts this week to discuss the continued relevance of this statement.

Today the courts are forced to dodge verbal attacks from Congress, the White House, and American citizens. Accusations of “judicial activism” are in some cases leading to intimidation of judges, outright threats, and even attempts at impeachment. Former House Majority leader Tom DeLay has, for example, consistently stated that the public must “rein in activist judges” by any means necessary. And a New Jersey legislator recently urged the state to impeachits supreme court after a ruling about the rights of same-sex couples.

Some studies also show that public approval of the courts may be waning. Several ballot measures put to the voters on November 7 were intended to “rein in” judges in various ways. A South Dakota ballot initiative known as “jail for judges” even proposed that rogue judges become subject to criminal prosecution.

Panelists at the event warned that public dissatisfaction with judicial decisions has led to a movement to strip judges and courts of their power. Former Congressman Bob Barr said that the movement “poses a grave threat to the very fabric of society.”

Barr also called on informed Americans to respond to these disturbing trends by educating others about the dangers of a weakened judiciary. Citizens should enter into a “real, substantive debate on the role of the judge,” he said.

Barry Friedman, the Jacob D. Fuchsberg Professor of Law at the New York University School of Law, expressed little concern over the recent developments. He put the court-stripping movement in historical perspective, saying that it would be “hard to find a time when the courts weren’t under attack,” and that “nothing very dramatic is happening.”

Caprice Roberts, Associate Professor at the West Virginia College of Law, agreed, saying that “generational narcissism” may have caused many to mistakenly conclude that the threat is far more serious than it actually is. Each generation, in her opinion, thinks that its problems are far worse than the preceding one.

Despite their disagreements, the panelists concluded that judges need to defend themselves from unfair allegations and become more involved in public debate. Dahlia Lithwick, Senior Editor at Slate.com concluded that until now, “judges have been way too quiet.” And Bob Barr agreed that the reluctance of judges to speak out makes them easy targets.

View video from this event:

• Introduction by Melody Barnes
• Is judicial independence being seriously threatened?
• From both sides: What is motivating this?
• What is judicial activism?
• Confirmation Hearings
• Q & A