Strange New Respect, Judicial Branch

In recent years, retired Supreme Court Justice Sandra O’Connor has become the kind of Republican the press likes. There may still be some conservative principles lurking in her approach to legal and political issues, but whenever she speaks publicly, she seems to be on the other side. One of her favorite topics in recent years has been the need for the public (i.e., conservatives) to stop criticizing judicial decisions. Yesterday, the Associated Press reported fawningly on a broadcast interview in which O’Connor stressed the importance of stare decisis:

Retired Justice Sandra Day O’Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go.
O’Connor, a swing vote in favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent months of state and federal court decisions.
The vast majority of the criticism, she said, is unjustified and borders on harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed with.
But federal courts, too, play a role in fostering public credibility by generally adhering to “stare decisis,” or settled precedent, O’Connor said.
Her comments come a month after the high court changed course on abortion, upholding a national ban on a midterm method of ending pregnancies known as “partial-birth abortion.” It was a 5-4 decision that opened the door for states to pass additional abortion restrictions.
Liberal and some conservative legal experts have criticized the decision as disturbing and inconsistent because it seemed to defy a virtually similar 5-4 high court case in 2000.
In the 2000 case, O’Connor was the key vote in striking down an abortion ban that placed an “undue burden” on a woman’s right to choose. O’Connor has since been replaced by conservative Justice Samuel Alito, who voted last month for the ban.
In the interview, O’Connor said she is working to put together a Web site aimed at junior high and high school students that will seek to instill respect for the judicial process, including “stare decisis”…

Stare decisis is the doctrine that courts should, generally speaking, follow their own past decisions. As a statement of principle, it is not controversial. Historically, conservatives have been more respectful of precedent than liberals. But today, “stare decisis has become code for “don’t overturn Roe v. Wade and other liberal decisions of the last forty years.”
Given her own history, Sandra O’Connor’s pontificating on the virtue of stare decisis is an act of judicial chutzpah. She herself has shown no respect for the doctrine when it served her purposes. The best example is Lawrence v. Texas, the 2003 decision in which the Supreme Court held Texas’s law prohibiting homosexual sodomy unconstitutional, on a 5-4 vote. What’s remarkable about Lawrence is that only 17 years earlier, in 1986, the Court had held in Bowers v. Hardwick that a ban on homosexual sodomy did not violate the Constitution. Showing no respect for stare decisis , the court in Lawrence simply overruled Bowers.
Here is what is even more remarkable: the difference in the outcomes of the two cases resulted from the fact that Justice O’Connor changed her mind! She voted with the 5-4 majority in Bowers that a ban on homosexual sodomy was constitutional. By 2003, she had reversed position, and her vote flipped the majority the other way. Homosexual sodomy became a constitutional right, for the first time in American history.
When liberals talk about stare decisis, they mean that Roe v. Wade is sacrosanct. But not Bowers, and not Stanford v. Kentucky, a 1989 decision in which the Court held that juveniles could constitutionally be subjected to the death penalry–a decision that the Court reversed in 2005 in Roper v. Simmons.
Writing in the Weekly Standard in January 2006, I analyzed the Democrats’ selective fealty to stare decisis, beginning with liberal Senators’ trying to exact a pledge from nominee Samuel Alito to adhere to the court’s precedents:

[T]he left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.
It would be easy to ridicule liberalism’s inconsistent attachment to stare decisis as opportunistic. Nor is it hard to find a straightforward political motive. In a narrow partisan sense, it makes sense for liberals to emphasize attachment to precedent when confirming conservative nominees, since the best they can expect from such nominees is a holding action. One day, when a Democratic president is appointing liberal justices, we’ll no doubt see more emphasis on the “living Constitution.”
Still, something deeper may be involved as well. When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals–especially those of an age to be senators–have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

Justice O’Connor was, by reputation, a judge whose decisions were all over the lot, often with no evident unifying theme. To her credit, she sometimes did honor stare decisis, for example when she voted in the minority in Roper. But her public pronouncements now seem calibrated to secure media approval more than anything else. She knows that, if she offers a paean to stare decisis, she doesn’t have to worry that a reporter will ask, “But what about Lawrence?”
She must know, too, that the days when reporters will be impressed by references to stare decisis may be numbered. If Hillary Clinton or Barack Obama occupies the White House in January 2009, the Constitution will become a living document once more.
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