From the Dallas Morning Herald:
Now that she’s left the Supreme Court, Sandra Day O’Connor has a few things to get off her chest. One of the first was to warn that the nation could slide into dictatorship if harsh critiques of the judiciary – from the likes of Texas Sen. John Cornyn and Rep. Tom DeLay – go unanswered.
“We must be ever-vigilant against those who would strong-arm the judiciary,” she said this month at a Georgetown University conference on corporate law. “It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.”
Last year, after killings of judges or their relatives in Atlanta and Chicago, Mr. Cornyn suggested that judicial activism had inflamed the public. And Mr. DeLay, then the House majority leader, called for the impeachment of judges involved in removal of life support for Terri Schiavo, a brain-dead Florida woman.
Both took strong issue last week with Ms. O’Connor’s remarks, which didn’t mention them by name.
The senator called the warning of potential dictatorship “hyperbole, to say the least.”
“That’s a remarkable thing for a former justice on the Supreme Court to say,” he said. “There’s no danger of dictatorship while people feel free to express their views, and it’s a ridiculous suggestion.
“Obviously she’s irritated, and maybe she feels somewhat liberated now that she’s no longer on the bench,” he said.
Mr. DeLay, R-Sugar Land, suggested the former justice is rusty on the concept of checks and balances, noting that Congress has an explicit right to strip courts of jurisdiction over any issue as it sees fit.
“I think she ought to read the Constitution again,” he said. “We have an authority. They are not an ivory tower over there. All wisdom does not reside in nine people with black robes.
“It’s in the Constitution, and it has not been exercised in 50 to a hundred years, and it’s time to do it.”
Conservatives have stepped up complaints in recent years about “activist” judges legislating from the bench – allowing gay marriage, banning public displays of the Ten Commandments, striking down mandatory recitation of the Pledge of Allegiance, upholding abortion rights, letting local governments condemn homes to make way for private development, and in one Supreme Court case, citing a precedent from a foreign court.
“I mean, they’re out of control,” Mr. DeLay said.
During the Schiavo episode, he decried the “arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president,” and warned that “the time will come for the men responsible for this to answer for their behavior.”
Such comments drew much of Ms. O’Connor’s ire.
Court officials declined to provide a text, but according to accounts in the Chicago Daily Law Bulletin and on National Public Radio, Ms. O’Connor – who left the bench a month earlier – said such statements “pose a direct threat to our constitutional freedom.”
While she was still on the high court, she made several speeches warning that judicial independence was at risk through intimidation. Her language this time was more forceful by far. She mentioned neither Texan by name but clearly alluded to them.
Mr. Cornyn took exception to the implication he had defended attacks on judges by suggesting that when some “unaccountable” judges “are making political decisions,” public frustration “builds up to the point where some people engage in violence.”
“To suggest that DeLay and I were somehow involved in trying to intimidate the judiciary – it’s clearly false. I’ve been a judge myself,” said Mr. Cornyn, who served on a Bexar County trial court and the Texas Supreme Court.
But he added, “I don’t think it’s improper to criticize” judicial decision-making.
“If they are going to serve in public life like the rest of us are,” he said, “they’re going to have to be exposed to some criticism of their performance in office, too.”