Wednesday, September 21, 2005

The strange confusion of Justice O'Connor

Retiring Supreme Court Justice Sandra Day O'Connor participated in a panel discussion in Tempe on Monday. According to the Associated Press account, she warned that judicial independence was under attack.

Death threats have becoming increasingly common, while proposals from politicians and interest groups threaten to restrict courts' jurisdictions, O'Connor said during the discussion at Arizona State University's law college.

"The concept of retaliation against the courts for past federal court decisions is very troublesome," she said.

Without a transcript of Justice O'Connor's remarks it would not be fair to conclude that she equated death threats against judges with proposals from politicians to restrict courts' jurisdictions.

It would certainly be "troublesome" if that's what she said.

Why? Because a death threat against a judge is a crime, while an attempt by Congress to restrict federal courts' jurisdiction is a constitutional power.

No kidding, it really is.

Article III, Section 2 of the Constitution gives the U.S. Congress the power to make "exceptions" to the appellate jurisdiction of the Supreme Court, meaning Congress can deny the Court the power to review certain kinds of cases.

What Justice O'Connor calls a threat to judicial independence, the framers called a check on the power of the Supreme Court.

The Supreme Court spends a lot of time finding rights in the Constitution that cannot be seen with the naked eye. The exceptions clause, on the other hand, is right there in plain English.

"Shall the more doubtful and indefinite terms be retained in their full extent," James Madison once asked in frustration, "and the clear and precise expressions be denied any signification whatsoever?"

Apparently it's not a new problem.

Recently the Supreme Court held an event in honor of Constitution Day, the new holiday imposed by Congress in an effort to get American kids to learn more about their government. Justice O'Connor and Justice Stephen Breyer met with fifty students from the Philadelphia area. The Associated Press reported this scene:

During a candid conversation about rights, federalism and the separation of powers, many students were surprised to see the justices looking at personal copies of the Constitution.

"Shouldn't they know the Constitution by now?" [Masterman High School teacher Steve] Gilligan recalled his students asking. "But then they found it comforting that the justices were referring to the original documents. They liked that, because it showed the justices remember where their power comes from."

Hmmm. Judge for yourself.

Meanwhile, Senate Judiciary Chairman Arlen Specter reportedly asked President Bush to delay the nomination of a replacement for Justice O'Connor until the end of the Supreme Court's term in June. He said he spoke to Justice O'Connor about staying for another year and she's prepared to do that.

Senator Specter said he would like the country to have a full year to get adjusted to Chief Justice John Roberts before the next nomination is attempted.

This is another indication that the Supreme Court has usurped the policymaking powers of Congress and the states.

It is now more disruptive and traumatic to replace a Supreme Court justice than it is to elect a new president or throw a party out of power in Congress. That's because the court is deciding policy issues, and while another election is always around the corner, a Supreme Court justice is for life.

The solution is not term limits for justices, but rather, holding the Supreme Court to the constitutional limits of its power. The exceptions clause didn't get into the Constitution by accident. The framers knew what they were up against.

Copyright 2005

Source notes:

The exceptions clause, from Article III, Section 2: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Read the U.S. Constitution online at

For more on the exceptions clause, see Raoul Berger, Congress v. The Supreme Court 1-4 (1969). See also Raoul Berger, "Insulation of Judicial Usurpation: A Comment on Lawrence Sager's 'Court-Stripping' Polemic," 44 Ohio State Law Journal 611-647 (1983), reprinted in Raoul Berger, Selected Writings on the Constitution 230-262 (1987).

The Madison quotation is from Federalist No. 41.

Read a legal thriller set in a future America where the Supreme Court is held to its constitutional limits: Pick up The 37th Amendment today.