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

29 Pages Posted: 19 Feb 2009 Last revised: 22 Feb 2009

Arthur D. Hellman

University of Pittsburgh - School of Law

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.

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

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: https://ssrn.com/abstract=1345457

Arthur D. Hellman (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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