Expectations awry

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Justice Sandra Day O’Connor’s Supreme Court career epitomizes the judicial lawlessness that has regularly stained constitutional law since Chief Justice Earl Warren’s stewardship from 1954-1969. She celebrated standards of interpretation pivoting on discernments unrelated to law or legal education in which judges are no more expert than philosophers, poets, or playwrights. The nation’s maiden female justice also viscerally embraced gender discrimination claims to avenge the authentic prejudice that had blunted her professional ambitions.

She generally conceived of the judicial role more as a broker striking compromises between competing political factions than as an expounder of longheaded legal doctrines to inform and to guide for the ages.

To restore the rule of law in the Supreme Court — the idea that the text and original meaning of the Constitution sharply constrains (but does not eliminate) interpretive discretion — President Bush must appoint a disciple of Associate Justice Antonin Scalia or unjustly defeated nominee Robert H. Bork. Otherwise, the intent of the Founding Fathers to create a government of law, not of men and women, will continue to falter within the third branch.

In Planned Parenthoood v. Casey (1992), Justice O’Connor, jointly with Justices Anthony Kennedy and David Souter, reaffirmed the constitutional right to an abortion initially decreed in Roe v. Wade (1973) from penumbras, emanations, and sister extraconstitutional considerations.

Justice O’Connor and the others bettered the instruction of Roe in pronouncing a personal view rather than reasoning from constitutional intent. They declared: “These matters [including abortion], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”

But the trio’s standard for interpreting “liberty” is standardless. It endows a judge with power to ordain an endless array of constitutional rights, for example, same-sex “marriage,” polygamy, recreational drug use, or jihad to honor one’s own concept of existence or life’s meaning.

A “mystery of human life” standard is clueless as to which liberty claims should be sustained and which denied. Further, no legal concept or text informs its application. Shakespeare, Milton, and Sam Johnson are more penetrating on the meaning and mystery of the universe than any jurist.

Justice O’Connor’s heady lawlessness in Casey carried over to her votes in Stenberg v. Carhart (2000) and Lawrence v. Texas (2003), to recognize constitutional rights to a partial-birth abortion and homosexual sodomy, respectively. It infected her view of the death penalty. According to a Supreme Court majority, including Justice O’Connor, capital punishment is invalid in circumstances where judges independently discern from their constellation of values that an execution would insult “the evolving standards of decency that mark the progress of a maturing society.”

Judges, however, are unschooled in identifying either standards of decency, the earmarks of progress, or the benchmarks of a society maturing rather than stagnating. All three concepts are foreign to the Constitution itself. They are matters for philosophers or sociologists.

That is why legal argument over application of the standard is futile. Some, like former Associate Justice William Brennan, insist no maturing society would tolerate the death penalty. Others, like Justice O’Connor, disagree. No amount of legal reasoning can persuade either side to yield because each relies on moral convictions, not law.

Thus, in Roper v. Simmons (2005), Justice Kennedy announced for the majority that the death penalty for crimes committed by minors violated the evolving standards test, whereas Justice O’Connor in dissent denied a maturing society that was progressing would invariably blanch over executions for grisly homicides perpetrated by a 17-year-old.

The justice fashioned an absurd “government endorsement” test to determine whether religious displays sin against the First Amendment’s prohibition of laws respecting an “establishment of religion.” As Justice O’Connor elaborated in Capitol Square Review and Advisory Board v. Pinette (1995), when a “reasonable” person would view a government practice as endorsing religion, i.e., would feel like an “outsider” or “not [a] full membe of the political community,” then the Supreme Court must intercede to stop the alienation.

The reasonable person, she amplified, is not an ordinary citizen with scant knowledge of the details of public affairs, but a putative individual omniscient as to the history and context of the community and forum in which the religious display appears. But judges are without tools or wisdom to determine the psychological sensitivities or vulnerabilities of citizens. The latter have nothing to do with law. Thus, as a Stanford Law School student or Arizona state judge, O’Connor never encountered a class or seminar on whether atheists feel estranged by the inscription “In God We Trust” on coins.

The justice is the best witness for the lawlessness of her “government endorsement” standard. On the last day of the term, she voted twice against the posting of the Ten Commandments in a courthouse and on state capitol grounds in McCreary County v. ACLU of Kentucky and Van Orden v. Perry.

But a year earlier in the Newdow challenge to “under God” in the Pledge of Allegiance, Justice O’Connor refused to acknowledge what would seem obvious—that an atheist would feel like an outsider in a group manifesting a belief in a Supreme Being with government sponsorship.

Justice O’Connor’s retirement creates an exciting opportunity to begin a counter-revolution against the Supreme Court’s chronic lawlessness in constitutional interpretation that has continued unabated for more than 50 years. President Bush should make the most of it.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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