You can tell a lot about a person by what they regret. This is especially true of Supreme Court justices, whose decisions can, with a single vote, upend individual lives and alter the course of history. Judge Lewis F. Powell Jr. said he probably erred in upholding a law criminalizing gay sex; Justice Harry Blackmun regretted voting in favor of the death penalty.
Justice Sandra Day O’Connor, who died Friday at the age of 93, publicly expressed regret for a vote she cast: in Republican Party of Minnesota v. White, a 2002 ruling that judicial nominees could not be barred from expressing their opinions. their views on controversial legal and political issues. Minnesota, like many states that elect judges, had imposed such a ban in order to preserve the appearance of judicial impartiality. The court threw out the ban for violating the First Amendment. The decision was 5-4, with Justice O’Connor joining the majority.
The court’s decision led to an explosion of partisan spending on judicial elections across the country and to judicial candidates who freely expressed their predetermined opinions on the very issues they would be charged with deciding if elected.
There are many ways to remember Justice O’Connor – as the first woman on the Supreme Court, as the justice who saved Roe v. Wade 30 years ago, as author of the landmark decision protecting affirmative action in 2003. Regardless, those achievements have mostly been surpassed or reversed. What strikes me is what she said and did after leaving court.
His response to the 2002 decision would mark most of his final years and underscore his commitment to American democracy, not only in the halls of justice but also on the ground. It was as if she could see what was coming as the justice system became increasingly politicized, and she devoted much of her postjudicial public life to combating this trend.
In March 2006, just weeks after her resignation, she gave a speech calling on Republican lawmakers to attack the justice system. She highlighted Senator John Cornyn of Texas’ comment that deadly violence against judges could be linked to their decisions.
The desire to protect judicial independence was, of course, not unique to her, but she approached this issue like almost no one else. As she made clear in her concurring opinion in the 2002 decision, she was not a supporter of the election of judges; Having been appointed to the Arizona Court of Appeals herself, she thought judicial elections were a terrible idea. But once a state chooses this method, she argued, it cannot prevent candidates from speaking out on issues that voters care about.
“I think she thought the decision would put an end to elected judges,” Margaret Marshall, who served as chief justice of the Massachusetts Supreme Judicial Court, told me. “She didn’t understand that once you give people the opportunity to vote for something, whether it’s a judge or a sanitation worker, it’s never going to be taken away from you.”
The damage this decision did to public confidence in the justice system was evident, as Justice O’Connor admitted in a speech to a conference of state judges in 2006, shortly after her retirement. “This affair, I admit, makes me think,” she said.
The following year, at a lecture at Cornell Law School, she said, “I try to never look back,” but admitted that people would be shocked by the amount of money that drug groups interest were spending to influence the results of judicial elections. Referring to the 2002 ruling, she said: “I think there are real problems as a result of this case, and I’m very concerned about what it does to this country to have partisan elections of judges. »
She began to understand the depth of the problem, but unlike Justices Powell and Blackmun, whose confessions could be considered too little, too late, Justice O’Connor decided she would do something.
In her post-judicial years, she devoted herself to defending judicial independence – the idea that for democracy to work, people must believe that judges review each case and decide them on their merits. , and not on the basis of political or other prejudices.
“I must have heard him talk about this more times than any other judge I can think of,” Ms. Marshall said. “That’s what she spent the rest of her life trying to instill in the American psyche, in schoolchildren and in bars.”
Justice O’Connor’s concerns about politicized courts will become even more urgent in her absence, as the danger becomes more clearly visible. In Ohio and North Carolina, state supreme courts ruled that Republican partisan gerrymanders illegally favored Republicans. But after the election gave the courts a solid conservative majority, they allowed skewed maps to remain. These decisions could help decide control of the U.S. House of Representatives in 2024 and beyond.
The opposite scenario is playing out in Wisconsin, where the majority of the state Supreme Court recently tilted in favor of the Democrats, after the most expensive judicial elections in American history – more than $40 million in expenses.
As Justice O’Connor warned, all this big spending and partisan campaigning has the effect of undermining public confidence in an entire sector of government. Appointing judges rather than electing them would make a difference, but it is not a silver bullet. After all, U.S. Supreme Court justices are appointed, and yet the current crop is among the most overtly political in history.
During her years-long crusade, Justice O’Connor seemed almost to be doing penance for the 2002 decision. The willingness to admit error is not easy for judges, but in doing so she was practicing the independence of spirit on which she insisted.