About UF Law
O'Connor Speech Text
It’s an enormous pleasure to be here at the University of Florida. This is the first visit that my husband and I have made to Gainesville, but I hope not the last, and I’m so honored to follow in the steps of our late and great chief justice, William Rehnquist, who had told me in the past of his visit here, and to be able to help you dedicate and take note of the Lawton Chiles Legal Information Center, named for such a distinguished public servant, former Governor, former U.S. Senator former walker-throughout-Florida Lawton Chiles. The work that has been done for this information center ties the entire law school together in such a wonderful way. The new building is beautiful, and with the new high-tech classrooms and the additional library space, the law school is well equipped to meet the demands of contemporary legal education. These new facilities are bound to inspire academic achievement and nurture interesting and valuable legal scholarship, and to nourish a sense of community among the law school students and faculty and staff and alumni.
As magnificent as it is, I want to talk to you all not about the building, but instead about one important use of the information that students will receive as they use the library here, and what role the students will play, whether they know it or not, in maintaining individual liberty and the rule of law.
Now, it is elementary high school civics that we have three branches of government, which regulate each other by an intricate system of checks and balances. The main check the judicial branch has on the others is the power to declare statutes or executive acts unconstitutional, though sometimes judges might check the political branches in a softer way, merely by interpreting a statute in light of Constitutional values, or by ruling that a regulation or executive act is not authorized by statute, but whatever else courts do, we have the power to make the other branches of government really angry. In fact, if we don’t make them mad at least some of the time, we judges probably aren’t doing our jobs.
Our effectiveness, therefore, relies on the knowledge that judges won’t be subject to retaliation for judicial acts.
As James Madison put it (and he, being the father of our Constitution, ought to be heard), “an independent judiciary is an impenetrable bulwark against every assumption of power in the legislative or executive.” The word “impenetrable” may be putting it a bit strongly, but the basic idea is sound. If you believe, as Madison and I do, that courts are important guardians of constitutionally guaranteed freedoms in our common-law system, you know that the system breaks down without judicial independence.
Now, judicial independence is hard to define. Judges can be subject to discipline for legitimate reasons, and the political branches properly control, to some degree, the jurisdiction and the political makeup of the federal courts and the various state courts. But if I may coin a phrase, I know judicial independence when I see it. For instance, suppose that during a period of stormy relations between the White House and the Chief Justice, the President’s bodyguards killed the Chief Justice’s pet cat. Or suppose the executive branch threatened to cut the water supply to the Supreme Court building to prevent the court from meeting and making anti-presidential statements, or the council of ministers tried to prevent the Supreme Court from entering its offices.
Now, the first two instances actually happened in the early- to mid- 1990s in Russia under Yeltsin, and the third happened in Bulgaria in 1995. Now, I think we can all agree, that is not judicial independence. Judicial independence doesn’t happen all by itself, it’s tremendously hard to create, and easier than most people imagine to destroy. That’s why the building where I work features a larger-than-life statue of John Marshall, who spent 35 years trying to nurture a culture where the political branches were, by and large, willing to acquiesce to the judicial branch’s interpretation of the law. Now, they don’t always acquiesce, but, fortunately, most of the time, politicians don’t challenge the courts to come and enforce their judgments themselves the way Andrew Jackson did in the wake of the Supreme Court’s decision in Worcester v. Georgia. Creating a culture in the early Republic where usually courts’ judgments were enforced by the other branches of government is an accomplishment that entitles John Marshall to take his place together with Hammurabi, Grotius, and Confucius (if I might cite foreign law for a second) in the frieze of the great lawgivers that appears along the top of the courtroom where Supreme Court justices sit.
That’s why it’s so heartening to see judicial independence take root in young democracies around the world, like some of the newly independent countries of Eastern Europe. Ukraine is probably the most visible recent example. In the late 1990s, Ukraine’s Supreme Court and Constitutional Court repeatedly upheld the rule of law barring the ruling government there from refusing to register candidates or from preventing lawfully elected candidates from taking office, enforcing the constitutional prohibition there against national deputies holding two government positions at once, and so on. When Yulia Tymoshenko, now the Ukrainian prime minister, at least until yesterday, then a reform-minded deputy prime minister for fuel and the energy sector, was arrested in 2001, the Ukrainian Supreme Court ruled that she had been illegally imprisoned, and prohibited attempts to re-arrest her. Most recently, of course, during the Orange Revolution of 2004, in the face of tremendous political pressure, the Ukrainian Supreme Court voided the presidential runoff between the two Viktors, Viktor Yanukovych, the prime minister, and Viktor Yuschenko the opposition candidate, which had been tainted by serious charges of voter fraud. The oral arguments in the case, which lasted five days, were marked by a level of transparency atypical for the ex-Soviet world. The proceedings were broadcast live on Ukrainian television. I hope the experience of the Orange Revolution will set the stage for lasting post-Soviet reform in that country, and I hope that American lawyers will continue to help reformers there, and in struggling democracies generally, as they did in the run-up to the presidential election, when the American Bar Association’s Central European Law Initiative (called CELI), working through American volunteer lawyers and judges, held regional training sessions for judges in Ukraine on election law and its application, helped train political party lawyers and to set up public education seminars at Ukrainian academic institutions.
Of course, not every country is a Ukraine. Maybe some of you have been following events in Zimbabwe, the home of what has to be one of the most nightmarish tyrannies in the world today. There, President Robert Mugabe decided not only that white farmers’ land should be expropriated and given away, but also instituted a fast-track procedure to hand over the land before any legal proceedings had been completed. In 2000, a challenge to the fast-track procedure found itself in Zimbabwe’s Supreme Court. In the middle of election season, 200 demonstrators, Mugabe’s supporters all, stormed the Supreme Court and occupied the building for two hours. Several climbed behind the judges’ bench, dancing, chanting ruling party slogans, and hammering the bench with their fists. After the demonstrators had been cleared out, the Supreme Court nonetheless ruled that the fast-track procedure was unconstitutional, but the Mugabe government ignored the ruling and the protestors suggested revoking two of the white judges’ citizenship. The chief justice of that court resigned under intense pressure including threats of violence by local militias against the judges. More recently, in 2002 the Supreme court in Zimbabwe threw out some of Mugabe’s election laws, finding that they had violated voters’ constitutional rights . Mugabe nonetheless ruled that the law shall be deemed to have been lawfully adopted. A judge on that panel, the last non-black judge on the Supreme Court, resigned without giving reasons. Another judge -- who, in 2003, freed an opposition activist who had been arrested for holding an illegal rally -- was made to face charges that were widely believed to have been trumped up.
Thankfully, our judiciary does not have to face Zimbabwe-style persecution. Four score or so years before our Constitution was adopted, the British government passed the Act of Settlement of 1701, which limited the succession to the British throne to Anglicans, but also, more importantly for us, provided that judges would hold office and draw their salaries during good behavior. Now we have Article III of our Constitution, which says basically the same thing, except in English and without the part about the Anglicans.
As you can read in the Federalist Papers (it’s anonymous but I can tell you this part was written by Hamilton: “The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which would maintain certain exceptions to the legislative authority. Such, for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved and practiced no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the constitution void. Now without this, all the reservations of particular rights and privileges would amount to nothing.” This is why, Hamilton says, judicial independence is especially important in the American system, but as the Founders knew, statutes and constitutions don’t protect judicial independence – people do – and the value of judicial independence is a lesson that even some of our current leaders maybe have not learned.
In a recent speech at a conservative conference, a prominent Congressman said that judicial independence does not equal judicial supremacy. He faulted the courts for their positions on abortion and school prayer, and for “improperly” citing international law. This was after Florida’s own Terry Schiavo case, when the federal courts applied Congress’s one-time-only statute as it was written, but perhaps not how the Congressman wished it had been written. In response to this display of judicial restraint, the Congressman blasted the courts for ignoring Congressional intent. These are not examples of a mature society, he said, but of a judiciary run amok. Speakers at that conference recommended mass impeachment, stripping the courts of jurisdiction to hear certain cases, and using Congress’s budget authority to punish offending judges. Mass impeachments – now that’s something we haven’t heard suggested until recently. Impeachment for a judge’s political acts has been politically taboo since the failure of Justice Samuel Chase’s impeachment in 1805. Jurisdiction-stripping proposals are certainly nothing new, thought their ancient use is no defense. In the 1950s, the proposals suggested stripping federal courts of their jurisdiction over desegregation and domestic security cases. In the 1960s, the controversy was over the admissibility of confessions in criminal cases. In the 1970s, it was over bussing. In the 1980s, it was about abortion and school prayer. Now we have the Pledge of Allegiance and gay marriage thrown into the mix as well. Congress has never given Article III courts as much jurisdiction as the Constitution allows, and quite frankly, most federal judges think we have quite enough cases as it is. Article III allows Congress to make exceptions to the Supreme Court’s jurisdiction, and even to abolish lower courts entirely. The merits of all these measures are debatable, as long as they are not retaliation for specific federal court decisions.
It gets worse. In all the federal courts, including the Supreme Court, death threats have become increasingly common. Judge Weir, who handled the Schiavo case down here for more than a decade, has received menacing e-mails and death threats. We’ve seen this before. Justice Hugo Black often wore a chest protector provided by the Secret Service when he visited Birmingham. My former colleague Justice Harry Blackmun often got death threats because of his authorship of Roe v. Wade, and his window was once shattered by a gunshot.
It doesn’t help when a high-profile senator, after noting that decisions he sees as activist cause him great distress, suggests that there might be a cause-and-effect connection between such activism and recent episodes of courthouse violence. Now, these comments have all come from Republicans, but of course Republicans aren’t the sole offenders. A former Democratic president complained, in words that sound a lot like recent statements, “the court has more and more often, and more and more boldly, asserted asserted its power to veto laws passed by Congress and the state legislatures. The court has been acting not as a judicial body but as a policy-making body.” He accused the Court of improperly setting itself up as a third house of the Congress, a super-legislature, reading into the Constitution words that are not there and which were never intended to be there. Like some current members of Congress, this president paid lip service to judicial independence, saying, “I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution,” but he made clear that he did not mean a judiciary so independent that it can “deny the existence of facts which are universally recognized,” he said. He believed in a government of laws and not of men, but he said this meant we should take action to save the Constitution from the court, and the court from itself. The President’s plan was simply this: whenever a justice or judge of any federal court reaches the age f 70 and doesn’t avail himself of the opportunity to retire, a new member shall be appointed. I’m sure you will all remember, this was President Franklin Roosevelt’s fireside chat of March 19, 1937. (He’s the fellow on the dime.)
Now President Roosevelt was in many ways a great and important president, but surely this was not his finest hour. I am not against limiting judicial terms, although the Constitution doesn’t provide for it for federal judges (a retirement age of 75 or so might be reasonable.) Anyone who has read some of my opinions knows I do not take a formalistic approach to these questions, and it takes more than reciting the mantra of judicial independence to get me worked up, but as I said before, I am against judicial reform driven by nakedly partisan, result-oriented reasons. The experience of developing countries, former Communist countries, and our own political culture teaches us that we must be ever vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a nation gets to be Zimbabwe, but if I might coin a phrase, we should avoid these ends by avoiding these beginnings. I recently read a Washington Post op-ed called “A Court Too Supreme for Our Good,” where a Washington lawyer called me and my colleagues “increasingly isolated imperious and opaque,” and advocated what he called one modest step, that Congress cut the Supreme Court’s budget until it at least allows cameras into all federal courtrooms. Well, given the political climate, and the tenuous grip many people have on the concept of judicial independence, when I hear a threat to cut judicial budgets, even when it’s only about cameras, I get worried.
This is where you come in. There’s no natural constituency for judicial independence, except perhaps for a vibrant, responsible lawyer class like the people who will be educated in this building in the years to come, and we can’t just trust the courts to protect themselves. For one thing, someone has to people those courts, on both sides of the bench, and those “someones” are some of you. For another, much of what makes a true threat to judicial independence is the offending politicians’ motivation, which we in the courts are often ill-equipped to ferret out. So the best defense against these threats is the maintenance and expansion of our own legacy: a culture in which such threats are frowned on, and therefore unlikely to even get off the ground. We can’t dedicate, we can’t consecrate, we cannot hallow this building. Rather, it is for the students and the professors who use these new classrooms, and the new library space, and the offices in the old buildings that this construction has made possible, to be dedicated to the practice and the promise of our Anglo-American common law tradition, which makes the courts, armed with the power of judicial review, and protected by judicial independence, part of the people’s arsenal to enforce the rule of law and protect individual freedoms. Think about that as this splendid new building is used. I hope it makes all the noise and the demolition, construction and flooding you’ve suffered over the past year or so worthwhile. Thank you.
This is an unofficial transcript of O'Connor's remarks at the dedication of new facilities at the University of Florida Levin College of Law. Any transcription errors are the responsibility of the University of Florida.