Former Supreme Court justice dismayed by attacks on judicial independence

By Steve Karnowski, The Grand Forks Herald (Grand Forks, North Dakota), May 24, 2006

MINNEAPOLIS - Former U.S. Supreme Court Justice Sandra Day O'Connor said Tuesday that she is "saddened and dismayed" at the intensity of attacks on judicial independence in recent years.

"We hear so much about judges run amok, judicial activism and so on," she said in a speech at the University of Minnesota.

O'Connor, the first female U.S. Supreme Court justice, noted that in recent years critics of the courts have called for cutting their funding and stripping them of their jurisdiction.

In a speech that was mostly a history lesson about firsts on the court, including herself, O'Connor said the Founding Fathers had been "so careful" to ensure the independence of the federal judiciary. She said they knew the future of the country was at stake.

"Those concerns are very real today," she said.

She didn't cite any specific instances of such attacks, but did say bitter battles over Supreme Court nominations are nothing new. She pointed to John Rutledge, whom President Washington nominated to be the second chief justice in 1795. The Senate rejected him because of his outspoken opposition to the Jay Treaty with Great Britain, a treaty she noted was negotiated by John Jay, the first chief justice.

O'Connor urged the sold-out crowd of about 4,500 university alumni and friends at Northrop Auditorium to use their influence and speak out whenever they hear judicial independence coming under attack.

She made no mention, however, of a Supreme Court decision in a Minnesota case that has raised deep concerns in some quarters about judicial independence.

In 2002, the court struck down the state's strict rules that prohibited judicial candidates from talking about legal and political issues during their campaigns. O'Connor sided with the court's conservatives in a 5-4 decision overturning the rules on free-speech grounds. Many judges have expressed fear that court races in Minnesota will become the kind of expensive, partisan battles seen in some other states.

O'Connor, who was appointed by President Reagan in 1981, spoke at the 102nd annual celebration of the University of Minnesota Alumni Association.

O'Connor, now 76, was considered a swing vote before she retired in January. Her retirement left Ruth Bader Ginsburg as the only woman on the high court.

David Stras, a University of Minnesota law professor who clerked for Justice Clarence Thomas while O'Connor was on the court, said O'Connor had been one of the most influential justices over the past 20 years.

Because she so often cast the deciding vote on 5-4 decisions, Stras said, there's a significant body of constitutional and other law that reflects her opinions.

"She's very much a pragmatist," Stras said, adding that he believes that independent streak came from her days as a state legislator in Arizona. And she was often the one who tried to foster compromise on the Supreme Court, he said.

Robert Stein, the outgoing president of the University of Minnesota Alumni Association, went a step further, calling her the single most influential justice of the past 25 years because she cast so many deciding votes. Stein is also outgoing executive director of the American Bar Association and a former dean of the University of Minnesota Law School.

In her speeches in retirement, O'Connor has often discussed the importance of protecting judicial independence, Stras said.

"She's been somewhat skeptical of congressional attempts to, sort of, create boundaries for justices or interfere with the work of the court, or any court for that matter," he said.

O'Connor is one of the relatively few Supreme Court justices to retire while they were still healthy and active, although the poor health of her husband was a major factor in her decision.

"It is rare to have an emeritus justice, so to speak, who can still make a significant contribution to legal discourse," Stras said.

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