The Judges Are Revolting

The Guardian reports that in a recent speech at Georgetown, Sandra Day O'Connor condemned what she saw as the evils of dictatorship beginning to corrupt the American political process. For the British daily, such stern words from a Republican ex-Supreme Court justice was a remarkable indictment of the Administration, its Congressional allies, and a general sign of just how bad things have gotten in the old U.S. of A. But, like with many things, first appearances can be deceiving.

Before praising O'Connor, it's important to ask exactly what she thought smacked of dictatorship. The reduction of popular participation in politics to only an occasional vote, with citizens enjoying little tangible control over basic political decisions? The intense resort to security speak as a way to justify permanent and global war? The creation of an international (and secret) prison system, largely unchecked and replete with cases of abuse? Clearly not the latter, since O'Connor's own decision in Hamdi v. Rumsfeld in June 2004 made constitutional the idea of indefinitely detaining individuals caught on the battlefield, with the only legal process being a military tribunal with the presumption of guilt, hearsay evidence, and no opportunity for judicial review.

Rather for O'Connor, what suggests the slide toward dictatorship are threats to the authority of the American judiciary -- specifically the efforts of Delay and other Republicans to strong-arm judges into supporting partisan political views. In a sense, such worries are part of a general trend among judges to hit back at what they see as a basic disrespect for their institutional competence. As discussed in an earlier post, what most upset the FISA court in the furor over warrantless domestic wiretapping was the fact that Bush's actions simply ignored the court entirely. Similarly, the Fourth Circuit, which has been notoriously deferential to presidential assertions of war powers, blocked the Justice Department's move last December to transfer Jose Padilla to a separate jurisdiction for a new criminal trial. For the conservative court, the government's behavior had crossed the line by directly questioning the circuit's power to decide on key cases.

Thus, what O'Connor and others fear as "dictatorship" is better understood as a threat to judicial supremacy in contested matters of law and constitutional politics. The courts have carved out an incredibly powerful role as final arbiters of constitutional meaning, but such power rests on the willingness of the "political" branches to defer to judicial authority and to accept the court's jurisdiction. Critically, this supremacy also rests on popular acquiescence to the court's right to preside over so much of the public discourse.

In a sense, what the Administration and Delay are doing --unintentionally -- in ratcheting up the partisan nature of the judiciary and openly defying court authority is exposing the very question of legitimacy at the heart of judicial politics. What right does O'Connor have to wield such massive power over our constitutional framework? At stake for her, the FISA judges, and the Fourth Circuit isn't the defense of the public from a threatening government. As we've repeatedly discussed, the courts have been instrumental in expanding the security state. For O'Connor and others, their real interest is in maintaining judicial sovereignty over basic political questions -- a sovereignty that remains unchallenged -- and with it the troubling presumption that judges are "non-political" and neutral appliers of the law.

All this should make the Guardian and other commentators deeply suspicious of dictatorship-talk by O'Connor. For her democracy is synonymous with law-rule, the safe assertion of constitutional prerogative by insulated courts. This is as impoverished and empty a view of democracy as that offered by the Bushies, and should be resisted. As long as we take our political cues for those like O'Connor we will never have the tools to challenge the current status quo or the political imagination to develop a richer account of democratic possibility.