After the Storm

Todd Ruger

Corporate Counsel

10-01-2012

Sandra Day O'Connor may be gone from the U.S. Supreme Court, but she still sounds a lot like its old voice of moderation.

Testifying before the Senate Judiciary Committee in July, the former justice called the heated criticism of the court over its decisions involving the Affordable Care Act "unfortunate" and an indication that the public could use some basic civics lessons.

Comments labeling Chief Justice John Roberts a "traitor" for his vote, or charges that he betrayed former President George W. Bush, who selected him for the post, "demonstrate only too well the lack of understanding some of our citizens have about the role of the judicial branch," O'Connor said.

She appeared before the committee to discuss how to ensure judicial independence through education. More specifically, she spoke about her support of iCivics, a nonprofit group she founded to teach students through free games about how government works and how they can become involved. But it didn't take long for her to pipe up for civility and compromise, sounding like she was back in her old seat at the court's center.

O'Connor advocated for taking politics out of the judicial branch. She said she hopes states that hold elections for judges will change to an appointment model like the federal system. Judicial elections require candidates to raise money for their election campaigns, "and I think that has a corrupting influence on the selection of judges," she said.

Since retiring from the court, O'Connor has been criticized by some proponents of state judicial elections and by The Wall Street Journal 's editorial page for her involvement in this issue—including her support of changes to the judge selection laws in Michigan and Iowa.

But at the hearing, she picked up some support from Democratic committee chairman Patrick Leahy from Vermont, who joined O'Connor in criticizing the attacks on Roberts. "These types of attacks reveal the misguided notion that justices and judges owe some allegiance to the president who appointed them or to a political party," Leahy said.

Not everyone agreed. Chuck Grassley, the committee's ranking minority member from Iowa, argued that the leading reason for "the so-called attack on judicial independence" are the judges' actions. "We hear that if only our citizens properly understood the role of the courts, unprecedented attacks on judicial rulings would vanish," Grassley said. "This view is at odds with both current reality and the history of our country."

Grassley pointed out that many Americans now disapprove of the Supreme Court's performance, and the health care decision did not improve its popularity. He cited a news account that showed that Americans believe the decision was based mainly on the justices' personal or political views, and only about 30 percent of Americans say the decision was made mainly on legal analysis.

When asked about the cause of that decline in the public's approval, O'Connor said: "I wish I knew." She speculated that Bush v. Gore was a tipping point.

Later, the conversation turned to another controversial subject: whether the Supreme Court should allow in cameras. Grassley mentioned that he supports the idea. O'Connor explained why she does not. Some of the justices "are not at all comfortable" with cameras, she said. And even without television broadcasts, she pointed out, every word spoken in the court is publicly available to read later the same day.

"It's not that there is a lack of ability to know what's going on," O'Connor said. "It's there. It's just, do we have to have it on the camera and on the television, or do we have to read it? I guess it boils down to that."

She summed up her own position in three words: "I'm a reader."

A version of this article first appeared in The National Law Journal, a sibling publication of Corporate Counsel.