First, the U.S. Supreme Court has, beginning with the Warren Court in the 1950's, reached a position of unprecedented political ascendancy in deciding how Americans live their lives. In the current court majority's judicial philosophy the people's duly elected president, and a majority of their duly elected senators and congressmen, can be brushed aside by the political views of the majority of the justices.
Second, Justice O'Connor has become the single most critical swing vote on a sharply ideologically divided Supreme Court. The current court, which has remained unchanged for more than a decade, has three reliable conservatives (Chief Justice William H. Rehnquist, and associate justices Antonin Scalia and Clarence Thomas), four liberals (associate justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer) and two moderate swing votes (associate justices Anthony M. Kennedy and O'Connor). This is why O'Connor's retirement is so much more volatile and controversial than the expected retirement of the ailing Chief Justice Rehnquist.
If Rehnquist were to be replaced by a justice in the Scalia-Thomas mold as promised by President Bush both in the 2000 and 2004 presidential campaigns, the court's ideological equilibrium would remain unchanged. However, if Justice O'Connor is replaced with a Scalia/Thomas-type justice, the Supreme Court will have taken a significant step back to the right on a host of social and legal issues. And, if she is replaced by a younger version of herself, it will make it virtually impossible to reverse the Supreme Court's liberal hegemony over American life for possibly a generation.
If activist justices like O'Connor remain in the majority, they will continue to frustrate the right of the American people to govern themselves through their elected representatives. For example, a law banning a late-term abortion procedure that kills often-viable infants, known as partial-birth abortion, was declared unconstitutional in a 5-4 Supreme Court decision in 2000, with O'Connor providing the deciding vote (Stenberg v. Carhart). Yet 70 percent of the American people support a ban on the procedure, which is reflected in the fact that a federal version of the ban passed both houses of Congress in 2003 with substantial majorities that included a significant number of Democrats. The people's will was frustrated not by the original intent of the Constitution's framers, but because it offended five justices' sense of right and wrong.
Justice O'Connor's vote has been pivotal in determining the direction of the Supreme Court and thus American jurisprudence and law. In the past decade she voted with the majority (meaning she provided the majority) in 75 percent of the Court's 5-4 decisions. In the year 2000, she was in the minority only once, exceeded only by Justice William Brennan's zero dissents in 1967. In 2001, Jeffrey Rosen declared in the New York Times Magazine that "we are all living now in Sandra Day O'Connor's America."
How did O'Connor steer the Supreme Court?
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According to Thomas and Taylor, Justice O'Connor slowly steered the court to the "moderate-left side of the cultural divide" on such volatile issues as abortion, church-state separation, and women's and gay rights. As a justice, she came to embody the court's increasing willingness to invalidate the "government rules and regulations that offended her sense of right and wrong."
Supreme Court justices, whether they are moderate liberals like O'Connor or conservatives like Scalia, should separate their personal convictions about right or wrong or the role of God or religion in American life from their judicial interpretation of what the framers of the Constitution intended when they originally wrote and ratified the Constitution.
This is precisely why the court, and the majority rulings Justice O'Connor's vote often provided, have become so divisive a force in American life. The essence of O'Connor's governing pragmatic social philosophy is revealed in her last decision in the Kentucky Ten Commandments case. In providing the deciding vote to deny the display of the Ten Commandments at the Kentucky County Courthouse, she did not refer to the original intent of the founders, but instead spoke of "carefully negotiated church-state boundaries" and asked, "why would we trade a system that has served us so well . ?"
No wonder Justice Scalia asserted in his dissent in the Lawrence v. Texas decision decriminalizing homosexual sodomy, that the majority of the present court had taken sides in the culture war--and that is neither the Supreme Court's job nor its responsibility.
An increasing number of Americans understand that the Supreme Court is supposed to be a neutral umpire, calling them as the Constitution sees them, not "fixing" the game by tilting all the calls to those that do not offend their personal sense of right and wrong.
The most recent Gallup Poll (June 16-19) found that 41 percent of Americans want the court to be more conservative, 24 percent would keep the status quo, and 30 percent want it to be more liberal. The same poll finds that among those that want the court to turn more conservative, 55 percent go to religious services as least once a week. According to exit polls conducted during the 2004 presidential election, people who attended religious services of any kind (church, temple, mosque, synagogue) at least once a week voted nearly two to one for George W. Bush. They did so mostly because of the kinds of moral-values issues (sanctity of human life, defense of traditional marriage, role of religion in American society) that they view as having been undermined by decisions of the current Supreme Court. And they want the Supreme Court returned to its proper role as neutral umpire.
As Judge Robert Bork said in his opening statement to the Senate Judiciary Committee on September 15, 1987, at his tragically failed confirmation hearings:
"When a judge reads entirely new values into the Constitution, values the framers and ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy."
People often call particular moments "the most critical moment of our time", but by definition, one of those moments truly is. Tens of millions of religious conservatives believe this is the moment and that the future of our liberty and our culture are at stake.