What did others think of Dahlia Lithwick’s recent Slate essay, “Justice Sandy: Five Simple Rules for Discussing Judicial Independence”? Lithwick is, to say the least, enthusiastic about Justice O’Connor’s recent remarks, at George Washington University and elsewhere, criticizing courts’ critics and defending “judicial independence.” Lithwick writes, “O’Connor had me at hello. I have been railing against the sneering, partisan political attacks on the judiciary for a long time, and I’m delighted that she’s ready to unload on the cretins who have been taking a brickbat to judges since the Terry Schiavo mess.” Lithwick ends with this:
. . . O’Connor is the best pinup girl around for judicial independence. She is neither secretive nor elitist; she’s plain-speaking, tough-minded, and open. She is, in sum, the exact opposite of the stereotype that the judge-bashers like to flay: the snobby, reclusive know-it-all. And that is precisely why Sandra Day O’Connor will turn out to be the secret stealth bomber in this rhetorical battle over judicial independence. She sits up there with her white hair and her blue suit and her home truths and she looks like precisely the sort of judge you’d want to be deciding matters. If O’Connor decides to hold a telethon, I’m signing up to sing.
I like to think I’m as big a fan of “judicial independence”, and civility in public discourse, as anyone (though I am not sure what the “sort of judge [I’d] want to be deciding matters” looks like). I agree with Lithwick, actually, that the post-Schiavo criticism of the federal judges who left her case alone was quite misplaced and unedifying. That said, I’m not sure what, exactly, it is that Lithwick (and Justice O’Connor) are endorsing, and criticizing. It cannot be right — can it? — that to contend (or, I would say, to observe) that the Supreme Court often gets it wrong, on things that really matter, and displays excessive self-confidence and ambition, is to engage in “sneering, partisan political attacks on the judiciary.” Does Lithwick think that harsh criticism of, say, the commandeering and sovereign-immunity decisions constitutes a “sneering” attack on judicial independence? I guess I’m trying to find the distinction, for Lithwick (and, for that matter, for Justice O’Connor) between “judicial independence”, on the one hand, and “judicial immunity from criticism”, on the other.
Posted by Rick Garnett on May 19, 2006 at 04:57 PM
Comments
I think she’s criticizing things like “Justice Sunday” (hence the title of the article). Perhaps a few examples will illuminate the difference between legitimate criticism of sovereign immunity doctrine and the rhetoric that Lithwick and O’Connor dislike. Start with the purpose of Justice Sunday III (from the website):
“To educate people of faith on how the judiciary impacts their lives and to show how activist judges seek to end all mention of God in the public square.”
Rhetoric like this isn’t just unedifying. By suggesting that certain judges have an agenda, the sponsors are deliberately trying to whip people into a frenzy in order to put political pressure on the judiciary. And, correct me if I’m wrong, but the idea that courts should be directly responsive to popular opinion seems to be fairly antithetical to the concept of judicial independence.
To take another recent example, the chairman of the Georgia Christian Coalition had the following to say about the recent decision to strike down the state marriage amendment: “Once again, due to the liberal configuration on the court, a judge has overruled the will of the people of Georgia.” The statement inflames passions (“those liberal judges are disenfranchising people!”) while obscuring the actual legal basis of the decision (the clause in the GA Constitution that prohibits multiple-issue ballot initiatives).
The problem with these quotes is one of focus and tone. The speakers focus on policy outcomes to the complete exclusion of legal reasoning. And they adopt a tone that is calculated to discourage, rather than encourage, civil debate. I think Lithwick and O’Connor fear that rhetoric like this will decrease public regard for the unique role of the judiciary in our constitutional system, and might ultimately lead to more politically dependent courts as the other branches are pressured to rein in “activist judges.”
(Of course, Lithwick and O’Connor assume that “judicial independence” is always a good thing. That’s certainly debatable, but I took you to be accepting the assumption when you described yourself as a big fan.)
Posted by: DG | May 21, 2006 3:22:51 AM
CTW, I guess I don’t see this line — “… contend (or, I would say, to observe) that the Supreme Court often gets it wrong … and displays excessive self-confidence and ambition” — as being anything like “sneering, partisan political attacks on the judiciary.” This might be why, as you say, I fail “get the (seemingly obvious) point of ms lithwick’s . . . article.”
Posted by: Rick Garnett | May 20, 2006 3:51:35 PM
“… contend (or, I would say, to observe) that the Supreme Court often gets it wrong … and displays excessive self-confidence and ambition”
“… harsh criticism of, say, the commandeering and sovereign-immunity decisions …”
this pair of quotes explains why you don’t get the (seemingly obvious) point of ms lithwick’s (admittedly not very good) article. I infer that you consider them equivalent whereas I see the latter as legitmate difference in professional opinion, the former as uncomfortably close to the genre of “sneering, partisan political attacks on the judiciary” – notwithstanding my confidence that you don’t intend it to be.
it’s the difference between “I completely disagree with your no doubt well-intentioned but nonetheless flawed analysis” and “your impure motives have resulted in a blatantly wrong and hence corrupt conclusion”. and one doesn’t have to stoop to ethics-challenged opportunists like tom delay for a good example of the latter – J scalia’s dissent in lawrence suffices.
Posted by: ctw | May 20, 2006 1:58:21 PM
There was an inappropriate and unsubstantiated swipe at Dahlia in an earlier comment on this thread. Let me explain why it’s been deleted. We are, as our tag line on the about page says, “just some friends trying to get the arguments right.” And for that reason I’m not really interested in picking fights with anyone in particular or for having this blog be the host of such scuffles, at least and especially when they’re strictly ad hominem attacks. We are probably most alert to this norm ourselves when our colleagues in the legal academy are the object of calumny here, but we no doubt mess up or avert our eyes when those on the outside are targets, and those writing are the prawfs who contribute here under their own names. The shared goal of this blog is to (continue to?) be a place that is for friendly discussion, and where we assume good faith on the part of interlocutors. Sometimes the comments (and even the posts) stray from that ideal, but they should not, and I hope this reminder helps note what our ideals are. Aha, you say, but what about Scott’s post yesterday about A.O. Scott? We are not perfect. On the merits, I largely agree with the law student’s comments on that thread. A.O. (“Tony”) Scott’s reviews for the Times, to my mind, evidence an imaginative writer with a shrewd grasp of the arts–and he also writes insightful book reviews for the Times and other places. I don’t always agree with his reviews, but I don’t expect to. That said, I’m confident that Scott M.’s post is intended chiefly as humor, and not “rebuttal.” Still, I know that some writers for the Times read this blog, and I know that if I woke up one morning described in cyberspace as the most insufferable person in the world simply for writing contested or even “snooty” movie reviews, I’d probably have a rotten day. On the other hand, I’d also think I’d have assumed the risk–after all, you can’t go into the business of criticism (whether art, movies, or literature) if you can’t take what you occasionally dish out. (Though as critics, they have to preserve their currency by actually explaining what’s wrong with something they criticize, as opposed to simply espousing bilious statements.) Reasonable people may disagree whether Dahlia assumes the same risk, but this blog doesn’t have to be the host of such swipes, again, especially by cowardly anonymous commentators. Moody lecture over. Namaste and shabbat shalom.
Posted by: Dan Markel | May 19, 2006 5:50:44 PM