A few weeks ago, we had the opportunity to hear former Supreme Court Justice Sandra Day O'Connor on a panel of distinguished jurists discussing "Ruling the Law: Judges, Legislators, and the Struggle for Judicial Independence." She was visiting Stanford as part of her 55th law school reunion weekend, and participated in a panel discussion along with Ming Chin, Associate Justice of the Supreme Court of California, and Rebecca Kourlis, former Colorado Supreme Court Justice. Dean Larry Kramer of Stanford Law School introduced the session and served as moderator. Each of the panelists had an opportunity to speak for a few minutes and then there was a Q & A, followed by questions from the audience (which turned truly bizarre).
The Justices all commented on the disturbing trend of judicial backlash through legislative threats of impeachment and budget cuts for judges who are considered to be "activist judges." Justice O'Connor was particularly disturbed by the notion of ballot measures calling for "jail for judges" who did not follow a particular political credo.
Justice Chen noted that he thought that an "activist judge" was one who showed up for work every morning, since judges are charged with interpreting and enforcing the law. He also noted that judges will never be popular because 50% of the people coming before them will leave unhappy with the verdict, since it has to go one way or the other. He said that the key was to make sure that litigants felt they were treated respectfully and fairly, and felt that their cases were duly heard, regardless of the outcome.
Justice O'Connor felt that it was the duty of every judge to render verdicts impartially, and not be swayed by politics, but by the rule of law and precedent. She thought that the system of checks and balances has served the country well, and in the history of the US, there have only been two instances in which the executive branch defied a Supreme Court ruling. The first was in the case of Worcester vs. Georgia, in which the Supreme Court recognized the sovereignty of the Cherokee nation in Georgia. Andrew Jackson famously said, "John Marshall has made his decision, now let him enforce it" and permitted Georgia to defy the court's order. That defiance eventually led to the relocation of the Cherokee nation to Oklahoma in what has been called the Trail of Tears due to the hardship faced by those forced to relocate.
The Justices agreed that the courts should not decide cases based on public opinion or what is reported on CNN or Fox News. The courts have to decide each case on its individual merits and is limited to the record presented before it. They noted that the high courts have become increasingly contentious, with some bitter dissents being filed.
Justice Chen noted that he has great faith in the judicial system, and said that people who serve on juries are more likely to become involved in the political process and vote. All of them agreed that the courts need to maintain affordability and access for everyone to be able to utilize the judicial system.
When they took questions from the audience, it seemed as though some people thought this was their one and only chance to make a speech before the Supreme Court. Instead of asking simple, direct questions, they tended to go on and on with some bizarre story or another. One woman was shouted down by the crowd after speaking at length about the fact that parents whose children are removed from the home have no 6th Amendment right to effective assistance of counsel.
The only time Justice O'Connor bristled a bit was being asked about vote on Bush v. Gore. She pretty much said that there was precedent to support her decision and that she didn't want to talk about it anymore.
I enjoyed this discussion very much, and was glad that I got to see these high court justices in person. I have not always agreed with O'Connor's decisions, but I have enormous respect for her, particularly as a mother. She took opted out of a successful career early on to care for her children, and was able to regain her position when women lawyers were not the norm. She opted out most recently to care for her ailing husband. It was a treat to hear her talk in this forum.
I have to say, I haven't thought that much about judicial independence since I stopped doing litigation about twenty years ago. It is frightening to think that judges are being threatened with impeachment for doing their jobs and rendering decisions based on the individual cases before them. I hope that this trend is one that reverses itself.
Today is the last day of NaBloPoMo, the month where bloggers attempt to post every day, "until the internet explodes" as one clever person put it. I finished, and managed to do a post a day, despite the fact that there were days when I literally felt like I had nothing to say. Those were the days when YouTube came in handy. Thank God for Wordless Wednesday, is all I can say. 
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