Abstract

http://ssrn.com/abstract=1345457
 
 

Footnotes (130)



 


 



Justice O'Connor and 'The Threat to Judicial Independence': The Cowgirl Who Cried Wolf?


Arthur D. Hellman


University of Pittsburgh


Arizona State Law Journal, Vol. 39, p. 845, 2007
U. of Pittsburgh Legal Studies Research Paper Series

Abstract:     
Sandra Day O'Connor retired from active service on the United States Supreme Court in early 2006. As her principal "retirement project," she has taken on the task of defending the independence of the judiciary. In speeches, op-ed articles, and public interviews, she has warned that "we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies."

Justice O'Connor has done the nation a service by bringing the subject of judicial independence to center stage and by calling attention to the important values it serves. Unfortunately, however, in describing the threats to that independence, she has presented a picture that is in some respects overstated and, in others, incomplete.

Four aspects of Justice O'Connor's critique are addressed in this article. First, Justice O'Connor has painted with too broad a brush in identifying what might be called "external" threats to the independence of the judiciary. Second, she has not adequately emphasized what may be called the "internal" aspects of judicial independence. Third, although she has discussed the threat to judicial independence posed by the election of judges in the states, she has said little about the current confirmation process for judicial nominations in the federal system, a development that may pose as serious a threat as any of the recent events that she does discuss. Finally, while Justice O'Connor has disclaimed the idea that "it is somehow improper to criticize judicial decisions," she has at the same time suggested that when elected officials rail against elitist judges, or when writers publish "jeremiads" against "judicial tyranny," they do present a threat - indeed a "grave threat" - to judicial independence. This view is misguided. In America, no one is above criticism, including criticism that is nasty and ugly and stupid. To suggest that intemperate language endangers the independence of the judiciary is itself irresponsible - and in the long run will only undermine that independence.

Number of Pages in PDF File: 29

Keywords: judicial independence, Sandra Day O'Connor, Justice O'Connor, federal courts, judicial nominations, judicial confirmations, judicial tyranny

Accepted Paper Series


Download This Paper

Date posted: February 19, 2009 ; Last revised: February 22, 2009

Suggested Citation

Hellman, Arthur D., Justice O'Connor and 'The Threat to Judicial Independence': The Cowgirl Who Cried Wolf?. Arizona State Law Journal, Vol. 39, p. 845, 2007; U. of Pittsburgh Legal Studies Research Paper Series. Available at SSRN: http://ssrn.com/abstract=1345457

Contact Information

Arthur D. Hellman (Contact Author)
University of Pittsburgh ( email )
3900 Forbes Ave.
Pittsburgh, PA 15260
United States

Feedback to SSRN


Paper statistics
Abstract Views: 817
Downloads: 79
Download Rank: 182,595
Footnotes:  130

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.282 seconds