The New York Times
April 22, 2005

3 Justices Respond Personally to Criticism of U.S. Judiciary

By DAVID STOUT
 

 

WASHINGTON, April 21 - Three Supreme Court justices gave rare, personal reactions on Thursday evening to criticism of the federal judiciary and agreed, not quite unanimously, that it does not bother them very much.

"This isn't new," Justice Sandra Day O'Connor said when asked to comment on remarks that America is suffering from a judiciary "run amok," as Representative Tom DeLay of Texas, the Republican majority leader, put it recently, although he was not mentioned by name.

Across the decades, she said, there have been many instances of lawmakers, or presidents, savaging one court or another in moments of political passion. (Mr. DeLay's annoyance with the Supreme Court and the "inferior courts," as the Constitution describes the lesser federal tribunals, has to do with a recent landmark ruling on capital punishment and the way the courts handled the Terri Schiavo case.)

Justice Stephen G. Breyer was similarly unruffled by what Tim Russert of NBC, the moderator of the justices' discussion at the National Archives, termed "a rising tide" of criticism against judges. "Our job," Justice Breyer said, "is to decide the case in front of us." He said he understood that occasionally "emotions run very high" in cases not just before the Supreme Court but the lower tribunals. Besides, Justice Breyer said, high emotions notwithstanding, "there's no talk of needing the paratroopers" to keep order in the streets.

"I dissent," Justice Antonin Scalia said, apparently not referring to the possibility of paratroopers but to whether the courts, and ultimately the American people, are being damaged by the intersection of law, politics and what some people characterize as an "evolving Constitution," a description that Justice Scalia generally does not endorse.

Justice Scalia recalled that he was confirmed by the Senate, 98 to 0, two decades ago, even though senators of all persuasions knew he was a conservative. He wondered aloud, in the discussion before several hundred people, whether he would get a similar vote today.

But a moment later, he laughed. "I don't worry about my legacy," he said. "Just do your job right, and who cares?"

The appearance of the three justices, sponsored by the National Constitution Center, the National Archives and the Aspen Institute, came as court-watchers are increasingly wondering when there will be a change among the nine members.

The current lineup has been the same since Justice Breyer took his seat on Aug. 3, 1994. The period without a change is one of the longest in the Supreme Court's history, but there has been speculation that President Bush may soon have an opportunity to nominate a justice, or even two. Chief Justice William H. Rehnquist is 80 and battling throat cancer, and Justice John Paul Stevens just turned 85.

The free-wheeling discussion, among three justices who are not always intellectual soulmates, seemed to reveal personal affection for one another and for the institution on which they serve "during good behavior," as the Constitution puts it.

Mr. DeLay has gone so far as to suggest that lawmakers explore exactly what the Constitution means by that phrase. His criticism of the judiciary has escalated since federal judges, including those on the Supreme Court, ultimately refused to intervene in the case of Ms. Schiavo, the brain-damaged Florida woman who was the focus of a battle between her estranged husband and parents over whether she should be kept alive by a feeding tube.

Mr. DeLay also criticized Justice Anthony M. Kennedy for citing international law in writing the court's ruling in March barring the execution of juveniles. "That's just outrageous," Mr. DeLay said on Tuesday.

And on that point, at least, he got some support from Justice Scalia.

Justice Scalia said Thursday evening, as he did in dissenting from Justice Kennedy's majority opinion, that the feelings and practices in other countries were irrelevant in deciding what to do about the death penalty in the United States. And Justice Scalia repeated his oft-noted wariness of the notion of an "evolving Constitution."

Justice Breyer did not quite agree. "It's appropriate in some instances" to look at what goes on in other countries, he said. "They do not bind us by any means."

In the capital punishment decision that Mr. DeLay found so offensive, Justice Breyer was in the 5-to-4 majority. All three justices said Thursday that young people need to know more about their Constitution. They laughed ruefully when Mr. Russert recalled an interview with young people waiting to get into "The Tonight Show With Jay Leno."

What did they think of the Fifth Amendment, the young people were asked.

"Is that the one that says you have to be 21 to drink?" one replied.