Judging O’Connor
What Justice Sandra Day O’Connor’s death-penalty remarks were all about.

By Ross Douthat, NRO
July 9, 2001 8:55 a.m.

t was shaping up to be a bad summer for death-penalty opponents. First, there was the execution of Timothy McVeigh in early June, arguably the most popular lethal injection ever administered in the United States. Then, during George W. Bush's travels in Europe, Americans were treated to self-righteous anti-death-penalty posturing on the part of nations that cuddle up to Saddam Hussein and China without a second thought, yet heed the prickings of conscience when the opportunity arises to bad mouth America's "human rights" record.

All in all, the anti-capital-punishment forces were looking out-of-touch — until Sandra Day O'Connor addressed the Minnesota Women Lawyers on July 1, and decided to unburden herself of various concerns regarding the implementation of the death penalty in the United States. In her rulings from the bench, Justice O'Connor has been a reliable supporter of capital punishment's constitutionality, and her sudden "death penalty doubts" threw the press into a tizzy. The New York Times opined of O'Connor's speech, "an anti-death penalty activist could not have put [the case against the death penalty] more pointedly." And the Washington Post added, "for Judge O'Connor to be expressing second thoughts indicates just how far the debate has moved and promises to move it further still" — toward outright abolition, of course.

So what, really, did the Justice say? This is difficult to pin down, since neither the Supreme Court nor the Minnesota Women Lawyers have yet released a transcript of the speech. Still, we know that in a much quoted passage, O'Connor remarked that "the system may well be allowing some innocent defendants to be executed;" and that she suggested that "perhaps it's time to look at minimum standards for appointed counsel in death cases."

Taken on their face, there is nothing particularly remarkable about either of these comments. Even the most fervent supporters of the death penalty recognize that human justice is fallible, and that on rare and tragic occasion an innocent person will be wrongfully executed. Nor is it a revelation that well-off defendants, able to hire their own high-priced attorneys, stand a better chance of getting off than defendants forced to rely on court-appointed counsel. (O. J. Simpson springs to mind — among many others.) The suggestion that more needs to be done to ensure adequate representation in capital cases is hardly a radical notion; what divides Republicans and Democrats is whether such safeguards are better implemented on the state or the national level, not whether they should exist at all.

More importantly, O'Connor's comments seem to have little to do with the death-penalty issues that will reach the Supreme Court in the near future. There was no mention, for instance, of the contentious question of whether executing the mentally retarded constitutes "cruel and unusual punishment," which the Supremes may revisit in their next session. O'Connor was the architect of the 1989 Penry v. Lynaugh decision, which upheld the constitutionality of such executions because, she wrote, a "majority consensus" had not yet developed on the matter. If she has changed her mind since then, her words to the Women Lawyers offered no explicit indication.

So, was Justice O'Connor's Minnesota speech merely the reflections of a private citizen, expressing what are widely held doubts about the efficacy and fairness of the death penalty? If so, then the entire media furor over her comments would seem to be little more than hot air and wishful thinking.

But Sandra Day O'Connor is hardly a private citizen. She is a member of the highest court in the land, a court whose members are famously loath to offer political opinions of any stripe — and more than that, she is a "swing vote" between the liberal and conservative blocs, a weathervane whose tilts typically determine which way the Supremes will rule. And she was speaking in Minnesota as a Supreme Court Justice addressing a collection of lawyers, not as a private citizen. She had to be aware of the ripple effect that her words would produce.

In this light, then, there are two ways to interpret Justice O'Connor's comments. Perhaps she was using her celebrity soapbox, such as it is, to prod at public opinion and encourage legislators to enact changes to death penalty law. This would be indecorous, but not illegitimate behavior for a Supreme Court Justice.

On the other hand, if Justice O'Connor's words were more than a prod, more than a suggestion — if they were a veiled threat, in other words, directed at the legislative and executive branches — than they represent the latest step in the judicial usurpation of politics. As the Post happily put it, "her words may be interpreted as a message to legislatures that they must improve the system or risk having the court do it for them." Change the laws, in other words, or we'll do it for you.

This is not, needless to say, how courts are supposed to proceed in a republican society. And it says something about our political life that the death penalty debate can be jolted, not by legislative action or executive orders, but by a few cryptic comments from a reticent Supreme Court Justice. We have a reached a point, it seems, where the musings of a judge — not the rulings, mind you, but the musings — may be a more reliable guide to what America's laws will soon say than, well, the laws themselves.

Perhaps the media furor was misplaced. Perhaps Justice O'Connor's long-held support for the constitutionality of the death penalty, and for individual states' rights to implement it as they see fit, will waver not a jot in the months and years to come.

Or perhaps the high Court's weathervane was serving notice that she is about to swing in a new direction.