Public Comments by Justices Veer Toward the Political

By ADAM LIPTAK

Published: March 19, 2006   - New York Times

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.

Skip to next paragraph 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."

Justice Ginsburg also revealed that she and Justice O'Connor, who retired in January, had been the targets of an Internet death threat over their practice of citing the decisions of foreign courts in their rulings.

The justices' speeches were mostly a reaction, students of the court said, to attacks on judicial independence in Congress. "The volume is being turned up on both sides," said David J. Garrow, the legal historian, "both in the attacks on the court and in the justices' response."

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," Mr. 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 often before, were sharper and more topical than what many expect from Supreme Court justices. Justice O'Connor's Georgetown speech was apparently neither recorded nor transcribed, but Nina Totenberg, the legal affairs correspondent for National Public Radio, reported on it the next day.

In the speech, Justice O'Connor seemed to address comments made by two Texas Republicans, Representative Tom DeLay and Senator John Cornyn, concerning Terry Schiavo, a brain-damaged woman whose feeding tube was removed by court order.

Ms. Schiavo was the subject of a confrontation between Congress and the courts last year. Congress lost.

Senator Cornyn said afterward that political rulings from judges had fueled public frustration. "It builds up and builds up and builds up to the point where some people engage in violence," he said. "Certainly without any justification, but a concern that I have."

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

Justice Ginsburg's speech, posted on the Supreme Court's Web site, focused on the citation of foreign law. She said that no one on the court contended that foreign decisions were binding precedents, only that they could 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.

Mr. Hall, who is also the president of the State University of New York at Albany, said Justice Ginsburg's statements were "really quite remarkable in the history of the court."

"She is pressing for a view of the Constitution that is quite cosmopolitan, and she is using an out-of-country venue to make her point," Mr. Hall said.

Justice Ginsburg's 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 believe that," Justice Scalia said in a speech in Puerto Rico last month, The Associated Press reported. "The Constitution is not a living organism. It is a legal document. It says some things and doesn't say others."

The dueling speeches, Mr. Hall said, represented "two Supreme Court justices arguing with each other off the bench."

Justice Ginsburg seemed to blame stalled Congressional measures that would have prohibited the citation of foreign law for the Internet death threat.

"Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support," she said. "And one not-so-small concern — they fuel the irrational fringe."

The threat, passed to the justices by a court security officer, was a February 2005 posting on an Internet chat site addressing unnamed "commandos."

"Here is your first patriotic assignment," the message said. "Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use foreign laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and constitutional freedom. If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."

Mr. Garrow said the threat was all the stranger because the stakes were trivial. "The odd thing is," he said, "that Justices Ginsburg and O'Connor are being attacked for their footnoting practices."

The death threat went nowhere, Justice Ginsburg said last month. Justice O'Connor, who will turn 76 this month, "remains alive and well," Justice Ginsburg, 73, said.

"As for me," she added, "you can judge for yourself."

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