If someone had asked you in recent days where you were when you first heard the news, much in the manner and with the same gravity as, say, where you were when you first heard the news about the assassination of President Kennedy and Sept. 11, it wouldn’t have been an overstated question.
The news here is the announcement last Friday that Justice Sandra Day O’Connor, who represented a critical swing vote on a host of important social and legal issues in American life, was retiring after 24 years on the bench, setting up a long fight over control of a seat that may alter the court’s balance on a diversity of polarizing topics.
It’s a mystery to people outside the United States, especially to people in the Arab world, why the nomination of a Supreme Court judge by the executive branch, subject to confirmation by the legislative branch, is of such paramount significance to the people of the United States.
Every major newspaper in the US, almost without exception, made the news of O’Connor’s resignation their front-page story and the subject of their lead editorials. The New York Times, for example, by far the most influential newspaper in the country, led with three front page articles and continued with four full jump pages on the inside.
The reason for the animated coverage of the story was not just that O’Connor played a pivotal role in court as a sensible and pragmatic jurist who abjured doctrinal absolutes in the opinions she rendered, but because, as the Times editorialized — somewhat breathlessly for the Times — “This is one time when it is not an overstatement to say that the choice of her successor could have an effect on the nation for generations to come.”
Put very simply, the decisions of the nine justices of the Supreme Court, the highest judicial body in the land, end up sooner or later defining the social, ethical, political and economic values that Americans live by. A president’s nominee to the Supreme Court, unlike his nominee to the Cabinet, is not selected to be a member of the chief executive’s team in government. Rather, the president here is choosing a judge who will act as a watchdog of the constitution, a judge who may write opinions against the executive branch, sometimes against the legislative branch, and sometimes against both.
And Americans love to have their disputes adjudicated in a court of law, ideally and as a last resort, in the Supreme Court. As early as 1835, the French commentator, in his book “Democracy in America, wrote: “Scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.” That is still true today.
Supreme Court trials (and, Oh, the honor and glory of pleading your case, as a young lawyer, in front of the august body’s nine justices!) make headlines, and garner great interest by the general public and equally great scrutiny by legal experts, because the justices’ decisions represent a mirror image of the passions and struggles of the times in which they are made.
Alas, the Supreme Court has been known at times, in its majority opinion, to pander to base passions afflicting the national mood instead of transcending it by interpreting the constitution with a framework of fidelity to the law. One case in point was in 1942, shortly after the start of World War II, when in Korematsu v. United States, the court ruled for President Franklin D. Roosevelt, who had ordered the internment of 120,000 Japanese Americans in prison camps. The ruling was 6-3, with Justice Frank Murphy, who cast one of the dissenting votes, calling the action “one based on the assumption of racial guilt” and that it “falls into the ugly abyss of racism.”
Later, many years later, not just the Supreme Court but the other two branches of government recognized that what they had done, in a rash moment of national hysteria, was unconstitutional.
In the end, however, the justices are not black-robed machines that interpret the law clinically, but are themselves the product of the temper of the times they inhabit - of a social context, a moral attitude and a distinct legal philosophy. They know, and we know, that the constitution, far from being a static document, is a living, breathing, dynamic set of guidelines that should adapt to the changing needs of society.
Those who framed the constitution clearly framed it as a flexible document, whose basic principles will endure but whose interpretation will evolve as America evolves. As the liberal Justice William Brennan wrote in 1986 (and let’s face it, what conservatives refuse to concede is that the constitution, especially including the Bill of Rights, is decidedly a liberal document): “We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Countless cases, ranging from civil rights to immigration, flag burning to affirmative action, abortion to religion in schools, have come up before the court, whose decisions on these issues have forever changed the face of America and how Americans live.
My favorite case — and I’m not advancing it as the gravest — is Tinker v. Des Moines, the story of Mary Beth Tinker, a 13-year old student who was suspended from school in 1965 for wearing a black armband in class to protest the war in Vietnam, where school officials claimed her action “upset the smooth and efficient functioning” of her algebra class.
Well, Mary Beth didn’t like that one bit. She thought the whole exercise was an encroachment on her individual rights — and filed suit, all the way to the Supreme Court.
Mary Beth’s “symbolic speech,” expressed by her armband, “may start an argument or cause a disturbance,” Justice Abe Fortas wrote for the majority at the time, but “our constitution says we must take this risk” and “schools cannot be enclaves of totalitarianism.”
Folks, with a legal precedent like that, head scarves, such as those worn by French Muslim girls to affirm their identity, are not likely to become an issue in the United States as they had become in France. In the US, your “symbolic speech” is your business and those interpreting constitutional law have better things to do with their time than go after uppity teenagers copping attitude with their fashion statement.
In her 24-year tenure as the first female justice, the Republican O’Connor was not above rendering opinions, especially about the effect of national security practices on civil liberties, that departed from the philosophy of her fellow Republicans. And about being the first woman in the highest court of the land, she once said: “The power I exert on the court depends on the power of my arguments, not my gender.”
Sandra, we miss you already.
