Speaking at Wayne State University on Tuesday, retired U.S. Supreme Court Justice Sandra Day O’Connor wasn’t shy in sharing her opinion about the need for a more independent judiciary.
Judges needs to be free of politics and the perception that they are influenced by outside forces, said O’Connor, a Ronald Reagan appointee and the first woman to serve on the high court. She also equated the escalating spending, especially in statewide judicial elections, to the arms race of the Cold War.
The importance of judicial independence can be traced to this country’s founders, who set in place a system of lifetime appointments for federal judges.
“There had to be a place where being right is more important than being popular or powerful, where fairness triumphs strength. In our country, that place is supposed to be the courtroom,” she said.
Public opinion, she noted, ran heavily against interracial marriage in 1968 when the U.S. Supreme Court struck down a Virginia statute outlawing it.
“It’s tough to imagine that judges easily removed through the political process would have issued an opinion striking down that statute,” O’Connor said.
The Brown vs. Board of Education decision in 1954, which led to the desegregation of public schools, would have been a similarly difficult case for elected judges, she said. “I think these examples show that in order for judges to dispense laws without prejudice, the judges need assurance that they’re not going to be subject to political retaliation for their judicial acts and decisions.”
State governors originally selected judges for state courts, but following a 19th-century wave of populism led by President Andrew Jackson, most states switched to popular elections.
(Jackson, O’Connor noted, was the general who led the U.S. troops to victory against the British when they were seeking to regain control of New Orleans in 1814 and 1815. “Who dat?” she asked to laughter and applause.)
O’Connor appeared as the keynote speaker at the day-long seminar titled “Options for an Independent Judiciary in Michigan” sponsored by the Wayne State University Law School and the American Board of Trial Advocates.
In the wake of the U.S. Supreme Court decision last month in Citizens United vs. Federal Election Commission, which in part removed campaign spending limits for corporations, unions and other groups, the mix of money and politics becomes even more of a concern in regard to electing judges now that powerful special interests have been handed even more clout.
“The threat to judicial independence is only getting worse,” she said.