The Nine [139]
This view appealed to O’Connor’s libertarian streak, but the core of her outrage had a different source. To O’Connor, the real danger was the idea that, with this law, Congress was trying to dictate to the courts how they should rule. In other words, worse than telling a family what to do was telling judges what to do.
The subject had long been a theme of her foreign travels. She saw Ukrainian lawyers trained by her CEELI initiative lead the Orange Revolution of 2004, where that nation’s Supreme Court voided a corrupt national election. She mourned the loss of judicial independence in Zimbabwe, where the regime of Robert Mugabe sent thugs into its Supreme Court, ignored the court’s rulings, and forced some justices off the bench. She frequently mentioned that in Russia presidential guards had killed the chief judge’s pet cat. In a little-noticed speech in 2003, at the Arab Judicial Forum in Bahrain, O’Connor had implored nascent democracies to embrace the cause of judicial independence. “It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied,” she said. “Judicial independence allows judges to make decisions that may be contrary to the interests of other branches of government. Presidents, ministers, and legislators at times rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of those solutions on rights and liberty, and must act to ensure that those values are not subverted.”
With Schiavo, O’Connor saw the threat to judicial independence not in some far-off capitol but in the one across First Street from her own office. Bush and his allies were undermining the separation of powers in the war on terror, ignoring the rule of law in Guantánamo, and undermining judges in Florida—and O’Connor wasn’t going to watch in silence as it happened. Later in 2005, she took her indignation on the road, giving fiery speeches on the subject of judicial independence.
O’Connor’s foes weren’t backing down either. On April 7, Tom DeLay told a conservative conference in Washington entitled “Confronting the Judicial War on Faith” that “judicial independence does not equal judicial supremacy.” Speakers at that conference advocated “mass impeachment,” stripping the courts of jurisdiction to hear certain cases, and using Congress’s budgetary authority to punish offending judges. O’Connor fired right back at him, noting in a speech to an appellate lawyers’ association that “this was after the Terri Schiavo case, when the federal courts applied Congress’s one-time-only statute as it was written, but, alas, perhaps not how the congressman wished it was written,” O’Connor said.
“It gets worse,” O’Connor went on. “In all the federal courts, death threats have become increasingly common.” Taking aim at Senator Cornyn, she said, “It doesn’t help when a high-profile senator, after noting that decisions he sees as activist cause him ‘great distress,’ suggests there may be ‘a cause-and-effect connection’ between such activism and the ‘recent episodes of courthouse violence in this country.’ ”
The threats were not an abstract issue for O’Connor. In this very month, April 2005, just weeks after the malicious comments in the chat room, each of the justices was sent homemade cookies containing lethal doses of rat poison. The packages were intercepted before they reached the justices’ chambers; the woman who sent them, Barbara