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"Disorder in the Court"--A Commentary by Prof. Stephen Carter


(This essay originally appeared in the July 3, 2005, edition of the New York Times.)

Disorder in the Court
By Stephen L. Carter, William Nelson Cromwell Professor of Law

I keenly remember the excitement at the Supreme Court when President Ronald Reagan announced the nomination of the little-known Sandra Day O'Connor to replace the retiring justice, Potter Stewart, in 1981. At the time I was a law clerk for Justice Thurgood Marshall, and, although none of us knew who she was, all of us sensed that a new epoch had begun. We were right.

During her two and a half decades on the court, Justice O'Connor excited as rich a mixture of undeserved opprobrium and richly deserved encomiums as any sitting member. It is far too early to assess Justice O'Connor's legacy, for that is the task of the historians, when they are able to look back and see what part of the current court's work stands the test of time. We cannot predict the far future, but we can predict the near future: it is going to be a messy summer.

What will make the summer messy is the certain controversy over Justice O'Connor's replacement. Mean-spirited idealists on the right and the left have been waiting years for this moment, and now it is upon them. Conservatives are demanding a true believer; worried liberals are gearing up to stop that from happening. The clash is likely to be ugly.

Had Chief Justice William Rehnquist stepped down, as widely expected (and as he still might), the battle would probably have been less severe. One conservative replaces another, liberal activists might have reasoned, so keep the powder dry. But Justice O'Connor's resignation is likely to excite even more attention than her appointment as the first woman on the Supreme Court: she is seen as a swing vote.

On issues from abortion to affirmative action to criminal procedure, it has often been Justice O'Connor's unpredictable vote that determines which bloc prevails. So the right will naturally see its chance to move the court further toward its agenda; and the left will battle to retain what pieces of its own agenda it can, a sort of holding action against the day when the Democrats again rule the White House and the Senate.

This path, so predictable, so frequently trod in recent decades, is carrying the Supreme Court, and the ideal of judicial review, toward disaster. There has been much talk lately of how the cruel posturing of politicians and commentators critical of various decisions hurts the reputation of the courts. And there is something to this notion. But the overwrought attacks by some critics do less harm to the notion of an independent judiciary than does the way activists gird themselves for battle each time a vacancy occurs, as if it is the obligation of the political branches to guarantee outcomes their supporters prefer.

We all claim to believe in judicial independence, but our definition of independence too often turns out to mean deciding cases according to our druthers. A court that rules in our favor displays integrity and independence. A court that rules against us shows its ideology and partisanship. Need evidence? Listen to anyone on the right discuss classroom prayer or abortion. Listen to anyone on the left discuss Bush v. Gore.

When we talk about decisions in this way - as if the only plausible results are the ones we like, a propensity that grows worse at election time and worst of all when a vacancy occurs - we obscure the proper relationship of the judiciary to the other branches of government, and of the Supreme Court justices to the larger society. When the news media survey the public for its view on decisions few people have ever read, interpreting constitutional provisions few people would recognize, the mischief intensifies, for the very act of surveying popular opinion on, say, the correctness of Roe v. Wade implies that the Supreme Court's highest duty is to do as it is told.

Confirmation hearings for nominees to the high court only make matters worse, for the would-be justices are forced to sit before the cameras, under oath, as senators ask them questions they cannot ethically answer, on how they would vote on cases that might come before them. This process began not in the early Republic but in the battle over Jim Crow. In the 1950's, the Southern Democrats who controlled the Senate Judiciary Committee decided to require every nominee to appear in person in order to grill them about Brown v. Board of Education. Before Brown, it was almost unheard-of for a nominee to testify. When the Dixiecrats changed the rules, the liberal position was that inquiries about such matters as judicial philosophy posed a threat to the independence of the judiciary.

The left of that era was correct. The spectacle we have made of confirmation hearings reinforces the public notion that the justices exist to decide cases the way political movements want them to. Liberals think the right started it, and conservatives think the left started it, but the important question is not who started it but who is going to stop it.

Perhaps President Bush could say to his most strident supporters on the right that it is not appropriate for them to behave with the triumphalism of conquerors who believe that the retirement of Justice O'Connor signals the moment to take control of the court. Perhaps the activists on the left, gearing up for a fight, could go back and read the speech made on the Senate floor by Edward Kennedy, during the vicious 1967 campaign over the nomination of Thurgood Marshall. Senator Kennedy warned his colleagues to reject the view that the Senate should reject potential justices who possess a judicial philosophy with which they disagree.

Or perhaps both sides should listen to the wisdom of Justice O'Connor herself. In 1992, she joined Justices David H. Souter and Anthony M. Kennedy in writing that the court, in deciding whether to overrule past decisions, must not "surrender to political pressure" and, indeed, that a reversal "under fire," except for the most compelling reasons, "would subvert the court's legitimacy beyond any serious question." These wise but often misunderstood words do not mean that the court should be above criticism; only that it is not up to politicians to decide when the court is wrong. This language occurred in the controversial decision in Planned Parenthood v. Casey where the court declined an invitation from the United States government to overturn Roe v. Wade. But one need not think Roe (or any other precedent) correct to appreciate the larger point: when the court becomes a political plaything, there is less reason for any of us to respect it.


Stephen L. Carter is a professor of law at Yale and the author, most recently, of "The Emperor of Ocean Park," a novel.