The esteemed Chancellor of the College of William & Mary made her first trip to the Roanoke Valley today, picking up an honorary doctorate from Roanoke College and giving a rousing Constitution Day speech. As stately, funny, and fearless as ever, Justice O’Connor garnered four standing ovations while speaking on a holiday that, by her own admission, falls somewhere in the national conscious between Groundhog Day and Talk-Like-A-Pirate Day.
Part of Justice O’Connor’s mission was to fix that. But more on that later.
The Justice started off her speech by reiterating some points that she’s been making recently about the importance of an independent judiciary and the danger of elected judges. If only there were a recent SCOTUS decision to help her make that point . . .
Justice O’Connor did get to Caperton eventually, but she set the stage by explaining that the majority of state court judges in our country are popularly elected–a concept that is foreign to much of the world, and which she characterized as unfortunate and dangerous. Justice O’Connor stressed the need for judges to be free to apply the law without prejudice, and without regard to popularity or fear of retaliation.
By way of example, she offered Loving v. Virginia, and explained that, when the Lovings were married, 96% of the white population favored anti-miscegenation statutes. That number was lower by the time the case made it to the Supreme Court, but at the time of of the decision, 72% of Southern whites still favored such laws–which, as it turns out, violate the equal protection and due process clauses of the 14th Amendment. She challenged the audience to imagine the popular pressure to uphold those laws. An elected justice who sought to overturn them would only be replaced by someone more in line with the popular consensus.
Building on the momentum of this anecdote, Justice O’Connor implored the audience to realize that there must be a place where being right is more important than being popular, and being correct is more important than being strong. She found it “distressing” that so many state court judges are elected, and found even more “worrisome” the amount of cash contributed to their campaigns–much of it by litigants or potential litigants. Case in point, Caperton v. Massey.
Justice O’Connor noted that voters from states that elect judges are more likely to be cynical, and to believe that judges legislate from the bench. Perversely, this leads them to favor elections, so that they can place on the bench judges biased in their favor.
So what to do about this problem? To Justice O’Connor, the long-term solution is education. We must teach children the importance of an independent judiciary. This, in turn, requires a real and meaningful civic education. Justice O’Connor tossed out some scary statistics to make the point that schools currently are failing in that regard. Two-thirds of young people, for example, know the judges on American Idol, but only 15% can identify the Chief Justice. Three-quarters of the population can name the Three Stooges (no word on whether they got extra credit for Shemp), but only 1/3 can name the three branches of government.
To address this problem, Justice O’Connor has brought together a team of experts, and established www.ourcourts.org, a web-based education project aimed at teaching middle-schoolers how to be active participants in our democracy. And she says that the website includes video games. In one, you play a law clerk to a Supreme Court justice. In another, you run a law firm; the more successful you are at identifying issues, the more lawyers you can hire and the more coffee you can buy to keep then working; this, in turn, allows you to appoint your office more nicely. The verisimilitude is stunning.
Justice O’Connor closed her talk by taking questions from the audience, which she handled graciously–or at least, as graciously as you can handle the 3,568th question about Bush v. Gore. In discussing that case, Justice O’Connor explained that she made a decision early in her career to the best she could on every case at the front end, and never look back. An audience member asked if she had any advice for students considering law school. After noting that we have too many lawyers already, Justice O’Connor suggested that the student take a speed-reading course to deal with the workload.
A question about whether she missed sitting on the Supreme Court drew the most touching response of the night. Justice O’Connor paused, then explained that she never aspired to be on the Court. She thought it would be impossible for someone of her rural background, at a time when there were so few women in law, to rise so high.
Happy Constitution Day, Justice O’Connor, and thank you for your service.