Justices' speeches break ground

Comments by O'Connor, Ginsburg veer toward a political position


Speeches by Supreme Court justices are usually sleepy civics lessons studded with references to The Federalist Papers and the majesty of the law. That seems to be changing.

This month, former Justice Sandra Day O'Connor told an audience at Georgetown University that a judiciary afraid to stand up to elected officials can lead to dictatorship. Last month, speaking in South Africa, Justice Ruth Bader Ginsburg said that the courts were a safeguard "against oppressive government and stirred-up majorities."

The recent speeches, said Kermit L. Hall, the editor of The Oxford Companion to the United States Supreme Court, may be breaking ground in judicial decorum.

"What's going on," Hall said, "is that Ginsburg and O'Connor are using their position - and it is striking that both are women - to state a position in favor of the judiciary that comes real, real close to taking a political position."

The O'Connor and Ginsburg speeches, variations on basic speeches they had given before, were sharper and more topical than what many expect from Supreme Court justices.

O'Connor said that interference with an independent judiciary had allowed dictatorship to flourish in developing and Communist countries, NPR correspondent Nina Totenberg reported. "It takes a lot of degeneration before a country falls into dictatorship," O'Connor said, according to Totenberg, "but we should avoid these ends by avoiding these beginnings."

Ginsburg's speech focused on the citation of foreign law in U.S. decisions. She said that no one on the court contends that foreign decisions are binding precedents, only that they can illuminate common problems. Judges consult and cite all sorts of materials in making decisions, and she said she was perplexed that one category of potentially valuable information should be out of bounds.

She also discussed what she called "dynamic versus static, frozen-in-time constitutional interpretation," suggesting a preference for the former.

Her comments may have been a response to Justice Antonin Scalia, who, in opinions and speeches, has rejected the view that the Constitution is a living document.

"You would have to be an idiot to be believe that," Scalia said in a speech in Puerto Rico last month, the AP reported. "The Constitution is not a living organism. It is a legal document. It says some things and doesn't say others."

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