October 30, 2003

Taking It All Away

So Sandra Day O'Connor thinks we should chuck the Constitution and base court decisions on International Law! And that the day we start doing that is coming soon.

Justice Sandra Day O'Connor predicts that the U.S. Supreme Court will increasingly base its decisions on international law rather than the U.S. Constitution, according to an article in the Atlanta Journal-Constitution. By doing so, the court will make a good impression among people from other countries, she said. "The impressions we create in this world are important and they can leave their mark," Justice O'Connor said.

"Make a good impression"??? Why in the hell do I as an American want my Constitutional rights trashed so that we can make nice with the rest of the world? Is she insane? I'm just appalled that someone in her position could even believe such a thing. I know I shouldn't be, but I am.

Read all of it and be amazed and horrified.

Posted by Ithildin at October 30, 2003 7:58 AM | PROCURE FINE OLD WORLD ABSINTHE

OK, she's officially gone off the deep end to join Justice Kennedy's demented babblings about "spatial and more transcendent aspects." I've never had an ounce of respect for her as a jurist: even the court's leftwing block, while usually wrong, nonetheless still usually has some level of philosophical consistency. O'Connor's sole principal is more power for O'Connor, which she's managed to implement to a frightening degree. Her so-called "judicial minimalism," approaching everything on as narrow a case-by-case basis as possible, just means more open questions and more discretion for courts (i.e., for her). She consistently fails to appreciate what Scalis once described as so fundamental axiom that it shouldn't need saying, namely that "the rule of law is a law of rules."

Posted by: Dave J at October 30, 2003 11:57 AM

She's a nutball. And she's a lifetime appointement?

Who gives a flying rat's ass what the world thinks of us? This is a Pron King and Queen popularity contest.

For God sakes woman, get off of the Ny-Quil!

Posted by: ...a moment with Easycure at October 30, 2003 12:12 PM

Maybe it's just a Halloween joke to scare everyone...(hey, I can hope, can't I?)

Posted by: Susie at October 30, 2003 2:13 PM

My God, she really said such a thing? That's grounds for removal from the bench. If the GOP is serious about strict construction, O'Connor's neck should be on the chopping block this instant.

Posted by: Francis W. Porretto at October 30, 2003 2:31 PM

THAT is fucking INSANE!

Posted by: Jay Solo at October 30, 2003 2:46 PM

Settle down, Francis. ;-) As much as I may regularly take issue with O'Connor, and hate to rise to her defense to any degree, I also think the Washington Times is spinning what she actually said somewhat out of proportion: when you're talking to a forum of international lawyers, obviously you're going to talk about international law, and courts have always drawn on experiences of their counterparts in other jurisdictions as persuasive authority. Indeed, the US Supreme Court stated nearly a century ago in The Paquette Habana that "international law is part of our law," although this holding specifically dealt with, and has been limited in application to, customary international law (i.e., not treaties). It's federal common law, and thus subordinate to any federal positive law (constitutional, statutory or administrative).

Given this, talking about the impression US courts make on foreign audiences, and relying on foreign legal opinions for guidance where US law doesn't appear to provide an answer, may sometimes be stupid policy, but I'd hardly think it rises to the level of intentional wrongdoing that would justify impeachment and removal from the bench. I think the Court barring the execution of the retarded in the Atkins case was mistaken, but citing one opinion from the ECHR was not the only, or even main, reason behind the holding. That was just completely unnecessary dicta, and methinks the mark of a clerk trying to open the door to more of this, not of a practice already widely adopted by the Court.

Oh, and Scalia himself calls "strict constructionism" a chimera. The Constitution is a document, not an organism, but it is a document in some places deliberately vague such that it not only requires, but indeed invites, interpretation. As with any legal document, stopping at the words alone is no help in such situations. A principled judge will search for the original intent underlying those words and apply that intent in good faith, but I don't think that can really be called strict construction.

Posted by: Dave J at October 30, 2003 3:18 PM

Dave, you really need a blog of your own :) Though I probably shouldn't say that because you'd stop commenting as much here. I always enjoy reading what you have to say, even if I don't agree with you.

Posted by: Ith at October 30, 2003 4:03 PM

To hell with what Scalia said. For an American jurist even to suggest, in any forum, that American jurisprudence ought not to put the Constitution above all other considerations is a violation of the trust invested in him -- or her.

The United States is its Constitution. Those Justices hold their offices under the Constitution. They take oaths to preserve and defend it. They claim the privilege of interpreting it. When they start to suggest that there's some "higher" or "more important" authority, they're committing treason. I don't care how immoderate that sounds; I want to see them yanked off the bench and dragged through the streets in chains.

Any assertion of authority not explicitly granted by the Constitution is an act of tyranny in the exact sense. Once upon a time, the Man In The Street would have understood that with no further explanation.

Posted by: Francis W. Porretto at October 30, 2003 4:42 PM

Francis, I agree with you far more than I think you realize. My point is that I didn't see any actual quotes from O'Connor saying such things, just characterization on the part of Greg Pierce, the article's author. Moreover, when Scalia or Bork criticize "strict constructionism," they're taking issue with the term for being inaccurate, not with what ultimately those who use it are arguing for.

As for express enumeration specifically, I also agree, but does not Article III vest the Supreme Court and such other federal courts as Congress may create with "the judicial power of the United States"? What does that mean? The Constitution doesn't say, so you can't simply stop there. It's an extraordinaly elegant document, but surely it does require some attempt to understand terms and meanings outside its own four corners. I'd point out, just as an example, that the vesting clauses of Articles II and III grant the executive and judicial powers not limited by the phrase "herein granted" as is the legislative power granted to Congress in Article I. I'm saying that means they're unlimited by any means: merely that those express grants themselves encompass the entirety of the Framers' understanding of what legitimate executive and legislative power are, and that again requires looking beyond the text because the text itself compels it. And if you think the vesting clauses are problematic, what on earth do you do with the Ninth Amendment, which seems to potentially mean everything if it means anything?

Ith, thanks: so I've been told. Someday, when I'm less busy (and less lazy). :-)

Posted by: Dave J at October 30, 2003 5:39 PM

Dave, I'll be selfish and say, "good!" :)

Posted by: Ith at October 30, 2003 5:43 PM

Oh, and that should read, above, "I'm NOT saying that means they're unlimited..."

Posted by: Dave J at October 30, 2003 5:51 PM