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(DV) Brasch: ...And a Justice for All







... And a Justice for All
by Walter Brasch
July 3, 2005

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The president of the United States was adamant about how he was conducting his so-called “War on Terror.”

He believed he could classify anyone, even American citizens, as “enemy combatants,” hold them indefinitely in secret without charges ever being filed, deny protections of the Geneva Conventions, refuse the right to legal representation, and when it was in the administration’s best interest to bring to trial prisoners outside the established court system. Under a “gag order” governing those held prisoner at the U.S. Naval base at Guantánamo Bay, anyone who revealed information about anyone’s detention could be charged under the USA PATRIOT Act. The Bush administration further claimed the prisoners at Guantánamo Bay were on “foreign” soil and, thus, not subject to American jurisprudence.

Several times in our nation’s history, the Supreme Court of the United States had ruled that fear and even terrorism might be a dominating concern, but that under the Constitution observation of rights and of law are the best ways to preserve the democracy. A President’s power, even in times of war, is not absolute, the Court several times determined.

In June 2004, that Court dealt the Bush administration a major defeat in how it treated American citizens and, by implication, others as well. In a stinging 33-page page opinion, Justice Sandra Day O’Connor firmly stated:

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . . The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties, which makes the defense of the Nation worthwhile.)...


[T]hreats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator. . . . .We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens. [E]ven the war power does not remove constitutional limitations safeguarding essential liberties. [T]he Great Writ of habeas corpus [is] an important judicial check on the Executive’s discretion in the realm of detentions. . . [I]t would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.


 Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short . .  . [T]he constitutional limitations safeguarding essential liberties . . .  remain vibrant even in times of security concerns.

Nevertheless, even after the ruling, the “law-and-order” Bush administration continued to delay, trivialize, and attempt to subvert the Court’s decisions.

Justice O’Connor, who last week announced her resignation, was probably the one justice whose stinging rebuke of Presidential excess represented not just her own opinion, but those of both the liberal and conservative wings, and why she had to be the one to write the Court’s decision.

Justice O’Connor was Ronald Reagan’s first Supreme Court nomination, and after unanimous confirmation by the Democrat-controlled Senate became the Court’s first female justice. She had grown up on an isolated Arizona cattle ranch, entered Stanford University at the age of 16, graduated with a B.A. in economics, and then in two years, instead of the usual three, graduated from Stanford Law School, third in her class. (William Rehnquist was first in the class). But, she was denied employment innumerous times because she was female. Eventually, she became a prosecuting attorney, civilian lawyer for the Army, Senate majority leader in Arizona (the first female to hold that position in the nation), and an Arizona appellate court judge.

At the time she was appointed to the Supreme Court, she was a political conservative, recommended to President Reagan by Sen. Barry Goldwater, one of the nation’s most respected conservative politicians. During her 24-year court career, the independent Justice O’Connor usually thought through cases not on the basis of political expediency or entrenched judicial philosophy, but on a case-by-case basis, thus becoming the Court’s swing vote on innumerable issues. On 5-4 decisions, she was in the majority more than 90 percent of the time.

Representing conservative issues, she was firmly a states’ rights advocate, and was the swing vote to uphold both the “three strikes and you’re out law” and to approve the use of public funding for “vouchers” to children to attend private schools. In December 2000, she cast what was the deciding vote that essentially elected George W. Bush to his first term.

Citing the First Amendment freedom of association clause, she was the swing vote that the Boy Scouts could exclude gays. But, she also was the swing vote that not only struck down a Texas law banning homosexual activity, but also forcefully stated that gays have a constitutional right of privacy. 

On liberal issues, she consistently voted in the majority in several 5-4 decisions to uphold abortion-rights cases, was the deciding vote to declare school-sponsored prayer and religious displays on public lands unconstitutional, upheld the rights of the disabled to sue states, and determined that affirmative action in university admissions criteria was constitutional.

Her centrist views in a divided court often forced other justices to modify their own views in order to gain her vote. On dozens of critical social issues, “she held the balance on whether the country would tilt all the way to the right or try to find a compromise between ideological poles,” said Kathleen Sullivan, professor of Constitutional Law at Stanford. For more than two decades, said Justice Antonin Scalia, perhaps the most conservative justice on the Supreme Court, “she shaped the jurisprudence of this court more than any other associate justice.” But, that reputation for independence and being the swing vote also brought her scorn. O’Connor’s role on the Court left the perception among many legal scholars that she was opportunistic and lacked an intellectual honesty, Dr. Charles Kessler, professor of government at Claremont-McKenna College, told the Arizona Republic. “Her dilemma is that she’s made a principle of not having a principle,” he said.

Justice O’Connor -- a scratch golfer, who also enjoyed tennis and whitewater rafting -- did not retire because of her age, physical or medical condition, or because she was mentally tired, but because of a long-standing commitment to her family. Known for treating her staff and co-workers as beloved members of an extended family, she retired to care for her husband, also a Stanford Law graduate, who has Alzheimer’s Disease.

Part of President Bush’s legacy will be what he does with the nomination for Justice O’Connor’s replacement. If he continues to disregard the advice of those who aren’t his closest political advisors and sticks to his promise to nominate someone acceptable to the evangelical right wing of his party, his legacy may be further tarnished. Not only would he show disrespect of the legacy of Justice O’Connor, but will have set into motion a political battle that may eventually lead not only to a greater division in the country, but of a Supreme Court that may be responsible for a further reduction of Constitutional freedoms.

Walter Brasch’s latest book is America’s Unpatriotic Acts; The Federal Government’s Violation of Constitutional and Civil Rights (Peter Lang Publishing, 2005). Dr. Brasch is a former newspaper reporter and editor, and is currently a university professor of journalism and a freedom of information officer for the Society of Professional Journalists. You may contact Dr. Brasch at:

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