September 29, 2006
The Inherent Right of ALL People
to Alter or Reform Abusive
The Right Upon Which All Other Rights
U.S. Supreme Court
Justice Sandra Day O'Connor, Ret., Attacks J.A.I.L.
(J.A.I.L.'s rebuttal will be posted on the
South Dakota website.)
Wall Street Journal
September 27, 2006
The Threat to Judicial
By Sandra Day O'Connor
In November, South Dakotans will vote on a state
constitutional amendment being advocated by a national group called "JAIL 4
Judges." If the amendment passes, it would eliminate judicial immunity, and
enable a special grand jury to censure judges for their official legal
determinations. Although the amendment's supporters claim they seek a "judicial
accountability initiative law" (JAIL), they aspire to something far
more sinister --judicial intimidation.
Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that
the organization "has that intimidation factor flowing through the judicial
It is tempting to dismiss this proposed amendment as
merely an isolated bout of anti-judge angst. But while the JAIL 4 Judges
initiative is unusually venomous, it is far from alone in expressing skepticism
of the judiciary. In addition to South Dakota, this election cycle has witnessed
efforts in at least three other states that are designed to rein in judges who
have supposedly "run amok."
Not to be completely outdone, Congress also has engaged
in recent efforts to police the judiciary. Seeking to constrain the legal
sources that are available to judges, some members of Congress have advocated
measures that would forbid judges from citing foreign law when they are
interpreting the Constitution. In addition, bills have been introduced in both
houses of Congress supporting the creation of an inspector general to
investigate and monitor the federal bench. Finally, the House of Representatives
passed legislation over the summer that would prohibit the Supreme Court from
considering whether the Pledge of Allegiance's inclusion of the words "under
God" violates the First Amendment.
* * *
Directing anger toward judges enjoys a long
--if not exactly venerable-- tradition in our nation. President Thomas
Jefferson, for instance, was a particularly spirited antagonist of judges
appointed by the Federalists. Moreover, President Franklin D. Roosevelt sought
to increase the number of Supreme Court justices because the court invalidated
several pieces of New Deal legislation. And I can distinctly remember seeing
lawns and highways across the country that featured signs demanding the
impeachment of Chief Justice Earl Warren.
But while scorn for certain judges is not an
altogether new phenomenon, the breadth and intensity of rage currently being
leveled at the judiciary may be unmatched in American history. The ubiquitous
"activist judges" who "legislate from the bench" have become central villains on
today's domestic political landscape. Elected officials routinely score cheap
points by railing against the "elitist judges," who are purported to be [out] of
touch with ordinary citizens and their values. Several jeremiads are
published every year warning of the dangers of judicial supremacy and judicial
tyranny. Though these attacks generally emit more heat than light, using judges
as punching bags presents a grave threat to the independent judiciary.
Troublingly, attacks on the judiciary are
now being launched by judges themselves. Earlier this year, Alabama Supreme
Court Justice Tom Parker excoriated his colleagues for faithfully applying the
Supreme Court's precedent in Roper v. Simmons, which prohibited
imposition of the death penalty for crimes committed by minors. Offering a bold
reinterpretation of the Constitution's supremacy clause, Justice Parker advised
state judges to avoid following Supreme Court opinions "simply because they are
'precedents.' " Justice Parker supported his criticism of "activist federal
judges" by asserting that "the liberals on the U.S. Supreme Court ... looked
down on the pro-family policies, Southern heritage, evangelical Christianity,
and other blessings of our great state."
It should come as no surprise that the
increased scapegoating of the judiciary has coincided with an increase in anger
directed toward individual judges. In the last decade, threats and inappropriate
communications directed toward the federal bench have more than quadrupled.
According to the U.S. Marshals Service, complaints about such behavior were
being logged at a record-setting pace this year. And while it is encouraging
that Congress recently set aside funds for federal judges to have home security
systems installed, it is deeply dispiriting that the demand for the systems
among the judges was so high. Judge David B. Sentelle of the U.S. Court of
Appeals for the D.C. Circuit was quite right when he observed, "Judges must be
free to make judicial decisions without the fear of physical harm to themselves
or to members of their families."
Given the escalating criticism that is
leveled at judges, it seems appropriate to bear in mind the reasons that the
Framers initially established an independent judicial branch. In Federalist No.
78, Alexander Hamilton explained why, in our constitutional system, "the
complete independence of the courts of justice is peculiarly essential."
Hamilton contended that the judiciary needed to be distinct from the legislative
and executive branches because that was the best way to guarantee "a steady,
upright, and impartial administration of the laws." Hamilton also believed that
judicial independence was necessary in order to safeguard against "injury of the
private rights of particular classes of citizens, by unjust and partial laws."
It is well worth remembering that, far more often than not in modern times, the
judiciary has admirably performed these two vital tasks: checking the other two
branches and protecting minority rights.
An independent judiciary does not mean, of
course, tat it is somehow improper to criticize judicial decisions. To the
contrary, it is a healthy sign for democracy that the public is engaged with the
workings of the judicial system. Judges can --and do-- sometimes render
erroneous decisions, but that is why appeals are allowed to higher courts.
Moreover, judges can be --and are-- subjected to discipline for legitimate
reasons. Members of the judiciary cannot sincerely believe that they should be
regarded as above the very laws that they are charged with interpreting. Ours
is, after all, a nation of laws, not men --or even women.
Nonetheless, we must be more vigilant in
making sure that criticism does not cross over into intimidation. Judges and
lawyers certainly play essential roles in opposing attacks on the judiciary.
Indeed, later this week, I --along with Justice Stephen Breyer-- am co-chairing
a conference on judicial independence at Georgetown University Law Center. But
the legal community needs help from other sectors of society to ensure that the
current mood of cynicism does not end up compromising the rule of law. This
includes members of the business community. Adam Smith, writing in "The Wealth
of Nations," well understood the importance of an independent judiciary: "[U]pon
the impartial administration of justice depends the liberty of every individual,
the sense which he has of his own security." Without judicial independence,
Smith warned, "it is scarce[ly] possible that justice should not frequently be
sacrificed to what is vulgarly called politics."
More broadly, of course, all of society has
a keen interest in countering threats to judicial independence. Judges who are
afraid --whether thy fear for their jobs or fear for their lives-- cannot
adequately fulfill the considerable responsibilities that the position demands.
In these challenging and difficult times, we must recommit ourselves to
maintaining the independent judiciary that the Framers sought to
Justice O'Connor is a retired associate
justice of the Supreme Court of the United States.