O’Connor: Supreme Court should follow precedent

Hope Yen

WASHINGTON — Retired Justice Sandra Day O’Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go.

O’Connor, a swing vote in favor of abortion rights and affirmative action, said she was seeing an unprecedented level of public criticism in recent months of state and federal court decisions.

The vast majority of the criticism, she said, is unjustified and borders on harassment of judges, especially in cases where lawmakers threaten impeachment of judges for decisions they disagreed with.

But federal courts, too, play a role in fostering public credibility by generally adhering to “stare decisis,” or settled precedent, O’Connor said.

“Obviously, that is a concern,” said the Reagan appointee, who retired early last year. She responded to a question in a broadcast interview about the public’s perception that the Supreme Court based its decisions more on politics than principle and whether that belief undermined the court’s credibility.

The law “shouldn’t change just because the faces on the court have changed,” she said.

Her comments come a month after the high court changed course on abortion, upholding a national ban on a midterm method of ending pregnancies known as “partial-birth abortion.” It was a 5-4 decision that opened the door for states to pass additional abortion restrictions.

Liberal and some conservative legal experts have criticized the decision as disturbing and inconsistent because it seemed to defy a virtually similar 5-4 high court case in 2000.

In the 2000 case, O’Connor was the key vote in striking down an abortion ban that placed an “undue burden” on a woman’s right to choose. O’Connor has since been replaced by conservative Justice Samuel Alito, who voted last month for the ban.

In the interview, O’Connor said she is working to put together a Web site aimed at junior high and high school students that will seek to instill respect for the judicial process, including “stare decisis” and the court’s power to overturn actions by the legislative or executive branch that impinge on individual freedoms such as speech, religion and due process of law.

The goal, in part, is to counter recent attempts by Congress and state legislatures to unduly restrict the authority of judges simply on the grounds that they disagree with the outcome of a decision, O’Connor said.

“Now, when I was a youngster I do remember seeing on the highway out by the Lazy B Ranch a big billboard saying, ‘Impeach Earl Warren,’ and that was in the years when there were some cases like Miranda and some criminal cases, and people got all excited,” O’Connor said.

Warren was a liberal chief justice who presided over court rulings that expanded rights for criminal defendants.

“But what we’re seeing now is a more broadly based range of criticisms of the nation’s courts, both state and federal,” she said. O’Connor cited in part a failed South Dakota measure to jail judges for “erroneous decisions” and unsuccessful efforts by Congress to punish judges who cited foreign judgments in Supreme Court rulings.

O’Connor, 77, indicated earlier this year that she would have preferred to stay on the Supreme Court for several more years until she was ill but that she stepped down because of her ailing husband, John, who has Alzheimer’s disease.

As a retired judge, O’Connor maintains an office at the Supreme Court, still draws a salary and fills in as a judge on the federal appeals courts. She also recently served on the bipartisan Iraq Study Group, chaired by former Secretary of State James Baker III and former Rep. Lee Hamilton, D-Ind., which called for a gradual troop pullout and more aggressive regional diplomacy.

After the report, President Bush announced a plan to send additional troops to Iraq over the objections of the Democratic-controlled Congress, which is now seeking to set timelines for troop withdrawals in an Iraq spending bill.

O’Connor said she wished the report had been able to bring consensus.

“It is a concern that, at the moment at least, we don’t see a broad consensus on what to do,” she said. “It would make it easier to get financial support out of the Congress and other supplies and action, as needed.”

O’Connor spoke on “Fox News Sunday,” in an interview taped late last week.

(Associated Press)