Posted on 11/03/2003 11:46:29 AM PST by Congressman Billybob
Supreme Court Justice Sandra Day O'Connor confessed last week that she has violated her oath of office in the past. That she intends to violate her oath in the future. And that she thinks this is good for America. Does that sound highly improbable? Wouldn't the national press have covered such a thing if it happened? Read on.
The Constitution states the oath of office that Presidents must take before entering on their duties. Each President must swear (or affirm) that he will "to the best of my Ability, preserve, protect and defend the Constitution of the United States." By custom, all other federal officials including Justices of the Supreme Court take a similar oath before entering upon their duties.
Justice O'Connor received the World Justice Award from the Southern Center for International Studies at its annual dinner in Atlanta last week. This is an obscure award from a semi-obscure organization. And speeches by Justices of the Supreme Court are not a hot ticket for the national media generally. So this may be the first that most readers have heard of this event.
Despite the fact that a "GoogleNews" search showed that only seven media outlets bothered to cover this, most of them local to Atlanta, this was an important speech. In it, the Justice revealed more than she may have intended about the Court and about herself. As with everyone who has ever "gotten a dinner," she made a speech that was generally pleasing to those who organized the event.
The main article was published in the Atlanta Journal-Constitution on 29 October, and was glowing in its praise for Justice O'Connor's remarks. Its title was, "O'Connor Says Court has its Ear to the World." The Journal-Constitution didn't bother to look into the background of the Southern Center for International Studies; I did. The dominant bloc on the board of the Center is past and present officers of the Coca-Cola Company, including its Vice President for Global Affairs. Presumably, money from Coca-Cola or from its charitable Foundation flowed in proportion to its phalanx of officers volunteered to the Center.
Reading the website of the Center leads to the conclusion that it favors international trade, of course, and opposes national impediments to such trade, including laws of the United States. Justice O'Connor's speech did not disappoint in that regard.
The gist of Justice O'Connor's speech was that decisions of the Supreme Court affect the reputation of the United States around the world, and that the Court should take that into account in deciding its cases. She said to her appreciative hosts, "The impressions we create in this world are important, and they can leave their mark."
She demonstrated her point with references to two decisions of the Court: the 2002 one that mentally retarded murderers should not be executed, and the 2003 one which struck down the Texas sodomy laws (and similar laws in 30 other states). In the death penalty case, Justice O'Connor said that the Court "regarded world opinion" in its ruling that executing retarded murderers was unconstitutional. She noted that American diplomats had filed a brief before the Court, arguing that their foreign missions had difficulties due to US practices in death penalty cases.
She did not see fit to mention the inconvenient detail that most death penalty cases in the US arise under the criminal laws of the various sovereign states, and that the US Constitution gives the subject of criminal law to the state governments themselves, acting on behalf of their own citizens. The same point applied to the other example which she cited with favor, the Texas sodomy statute which the Court struck down, while rejecting one of its own precedents in ruling with the laws and decisions of other nations as against those of the United States.
Justice O'Connor told her audience at the Southern Center, "I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."
It ought not to be necessary to remind a Justice of the Supreme Court what the Constitution says about the authority of that Court. Reporters (and their editors) who cover the Court and its Justices ought to have a copy of the Constitution handy, and should refer to its text when relevant. Since both the Justice and the reporters on this occasion fell down on the job, I'll make up the lack.
Article III of the Constitution defined the federal judiciary. Section 1 created the Supreme Court and established its limited original jurisdiction. It also gave Congress the power to create lower federal courts and define the jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court. Then, having defined the courts, the Constitution defined their jurisdiction.
Section 2, says that "The judicial power of the United States shall extend to all Cases, in Law and in Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made, under its authority." To put it in plain English, the jurisdiction of all the federal courts extends only to laws and constitutions in the United States, both state and federal. International law is, exactly as Justice Scalia said in his stinging dissent in the Texas sodomy case, absolutely irrelevant to the decision of any Supreme Court case.
The only way that international law can become relevant to a case in federal courts, is if it's incorporated into a treaty that's been ratified. The reason for that is the Constitution specifies that a treaty, once ratified by the Senate, becomes part of the laws of the United States. It then becomes relevant not because it is an international law, but because Senate ratification has made it part of US law.
So in admitting that she and other Justices in some prior decisions had used international law generally, not limited to ratified treaties, and that they would do so again in the future, Justice O'Connor was violating her oath to "preserve, protect and defend ... the Constitution."
Why did the Southern Center for International Studies decide to honor Justice O'Connor (and honor itself by persuading her to accept its award)? Perhaps they chose her as being compatible with the Center's globalist views because of an interview months ago that Justices Breyer and O'Connor jointly did with ABC News' "This Week" host George Stephanopoulos. Justice Breyer attacked Justice Antonin Scalia's dissent in the Texas sodomy ruling, which contended the views of foreign jurists are irrelevant under the U.S. Constitution. Justice Breyer added, apparently with Justice O'Connor's approval, "We see all the time, Justice O'Connor and I, and the others, how the world really –– it's trite but it's true –– is growing together.... Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
This attitude that the Court should be a legal adjunct to the State Department to "win friends and influence people" conflicts with some of the Court's own decisions which have recognized that international affairs are "peculiarly given" to the President and the State Department, and not to either the Congress or the federal courts. Furthermore, this attitude is a frontal assault on the most basic and central premise of American political theory and the Constitution itself.
As the Declaration of Independence states, the most basic political right is that of self-government. This is enshrined in law in Article V of the Constitution, which gives the right of amending the Constitution solely to the people of the United States – acting through their elected representatives in Congress and in the state legislatures. The Constitution gives no power whatsoever to the nine unelected Justices of the Supreme Court to amend it as they choose, for whatever reasons at least five of them might cobble together.
If the people of the United States, acting through Congress and the state legislatures, were to decide that some aspects of international law should be incorporated into the Constitution, that would be a legitimate decision. But that is quite a different matter than the unelected Justices appointing themselves as Platonic "philosopher kings" to take such a decision away from the people and impose it by judicial fiat.
The United States has become a beacon to the world, symbolized by the Statue of Liberty, precisely because of the government, society, and economy that it has developed since 1787. And amendments to the Constitution will, of course, have their effects on the society and economy of the United States. But nothing in that Constitution gives the Supreme Court the power to usurp the amendment power and to make such changes on its own hook. This is especially true when the Court wants to make changes based on its own personal preference for laws of other jurisdictions over laws of the United States. This logical conclusion is so clear and obvious that it's appalling to see a sitting Justice of the Court say the opposite, deliberately and in public.
In short, Justice O'Connor's speech to the Southern Center demonstrates that she has willingly violated her oath as a Justice, that she intends to do the same thing in the future, and that she's proud of that behavior. There should be little doubt in light of this, why the confirmation of new judges, and ultimately new Justices, has become such a tooth-and-nail fight between those who want judges who will obey the law and the Constitution and those who want judges who are "progressive" and therefore "open-minded" on such matters. Justices do not take an oath to be "open-minded" about enforcing the Constitution.
Nothing less than the future of the Constitution, and of the central concept of popular sovereignty over our government, are at stake.
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About the Author: John Armor is an author and columnist on politics and history. He currently has an Exploratory Committee to run for Congress.
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Lemme know what you think.
Is there any link to her whole speech? I would like to see her words in context before I get a voodoo doll, name it Sandra, and start sticking pins on it.
The judges are Honored therefore nobility; hence Justice O'Conner is more divine than the rest of us and above the laws. All these calls to impeach are so pitiful. [no sarcasm]
John / Billybob
Second, as I understand the impeachment process, we must first get the House to investigate this and then take action. The Senate will then act as the court if, the House acting as a grand jury indites. If my understanding is correct, then a true transcript of her speech is absolutely necessary.
John / Billybob
Neither of those criteria apply to Justice O'Connor, so I do not expect any serious effort by the House to impeach her, much less would the Senate vote by 2/3rds to convict on a situation like this.
The only pragmatic cure I see for this intellectual disease among the Justices is the confirmation of judges who intend to obey the Constitution, like Judge Janice Brown, etc.
John / Billybob
John / Billybob
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