There Are Times when a Former Supreme Court Justice Should Not Give the Media Her Superficially Delivered Opinion — Retired Justice Sandra Day O’Connor Is Now Quoted as Questioning the Advisability the Supreme Court’s Intervention in Bush v Gore — but She apparently Ventured this Statement without Providing any Substantive Legal Reasoning to Justify Her Thinking

29 April 2013

Leave it to the media to leave out — or not ask for — legal reasoning

Former U.S. Supreme Court Justice Sandra Day O’Connor has been making the media interview circuit, promoting her book, Out of Order: Stories from the History of the Supreme Court.

The interviews that I have seen have been painfully superficial — in part because:

(a) her interviewers don’t know enough law to ask penetrating questions

and,

(b) in part, because Justice O’Connor has been reluctant to say anything that might offend her former colleagues.

Unfortunately, when you combine media ignorance with Justice O’Connor’s desire for evasively obtained publicity, you get some less than half-assed results.

The most irritating of these to date has been the Chicago Tribune’s reporting of its interview with the esteemed justice, in which she is quoted as having said:

It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.

Looking back, O'Connor said, she isn't sure the high court should have taken the case.

"It took the case and decided it at a time when it was still a big election issue," O'Connor said during a talk Friday with the Tribune editorial board.

"Maybe the court should have said, 'We're not going to take it, goodbye.'"

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

"Obviously the court did reach a decision and thought it had to reach a decision," she said.

"It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

This is helpful how?

Justice O’Connor’s quoted statement is legally and contextually incoherent.

The predominant issues in Bush v. Gore are whether the Court had the appellate right to overrule the Florida Supreme Court and, if so, what substantive grounds it could generate for its decision to give then Governor George W. Bush the election.

The Chicago Tribune apparently didn’t bother to press Justice O’Connor on either of these critical points. Instead, the newspaper’s editorial board apparently let her get away with the idea that the Court should have considered ducking the issue because the result would foreseeably be controversial.

Such a solution obviously overlooks the crisis mentality that dominated the time, and it goes against the 5-person majority’s reasoning (which O’Connor shared) for taking and deciding the case as it did.

Had I been one of O’Connor’s fellow justices (on either side), the Tribune’s report of her statements would irritate me.

Indisputably, Bush v. Gore was one of the Supreme Court’s most legally unwarranted major decisions. Therefore, I am not quarreling with Justice O’Connor’s current questions regarding the advisability of accepting it for review.

But I am annoyed that the esteemed justice would wade into such a wound without:

(a) explaining what the Court substantively faced at the time

and

(b) having the courage to analyze how the majority distorted law and legal precedent to impose an arguably illegal end to a disputed national election.

The moral? — Some wounds are best left alone, unless one has the courage to deal with them in a straightforward and substantive manner

Self-promoting coyness in a Supreme Court justice is professionally unbecoming.

This is so, even though such lapses in jurisprudential decorum seem to have been made acceptable by the blowhard and politically intended self-promotions that characterize Justices Antonin Scalia and, to a lesser degree, Clarence Thomas.

In Justice O’Connor’s defense, it is possible that:

(a) she recognized the ignorance of her audience at the Tribune and abbreviated her statements about Bush v. Gore,

or alternatively,

(b) that the newspaper took her statements out of their more nuanced context.

That said, based on the Tribune episode and other interviews of Justice O’Connor that I have seen, I suspect that her book about the Court contains more gloss than substance.

It is virtually impossible to write intelligently about jurisprudence without substantively engaging it. But so far, I have seen no sign that Justice O’Connor wishes to do more than bolster the Court’s sagging reputation by intentionally skirting areas of legitimate controversy.

Such arguably cowardly fence balancing is the price one pays for being a swing vote in a Court dominated by partisan politicians in robes.

The harm that the Court has done itself is not the result of public misunderstanding — as Justice O’Connor seems repeatedly to imply — but of the ostensibly “conservative” majority’s too frequent penchant for violating the Court’s own, historically acquired rules of jurisprudence.

Bush v. Gore is an especially eminent example of veering outside the jurisprudential framework. Justice O’Connor would have gotten more admiration from me had she said so and proved it in legal terms. Given that she was one of the majority in coming to that decision, if she wants to question Bush v. Gore’s wisdom now, providing a sound analysis is the least that she can do.

Her book probably exhibits the same intellectually annoying lack of detail, insight, analysis, and occasionally justified chain-pulling. (According to Amazon, quite a few of the people who have read the volume reach the same conclusion.)

America does not need more pap. We are already drowning in it.

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