A justice to keep America from straying

from the July 08, 2005 edition - http://www.csmonitor.com/2005/0708/p09s01-coop.html

By David R. Dow

HOUSTON - When President Bush nominates someone to replace Justice Sandra Day O'Connor, he should remember one thing: Judges are America's prophets.

The president and his allies have said many times that judges aren't supposed to impose their personal values on the rest of us. That is true. What judges are supposed to do, however, is to force us to live in accordance with our own values.

It is easy to confuse these two things. When judges force us to adhere to our own values, they sometimes require that we behave differently from the way we have been behaving. Because they have forced us to alter our actions, it's natural to think they must be imposing their own values on the rest of us. But that's not what is happening.

Consider how, in these landmark cases, the court told us we had to change our behavior:

• Brown v. Board of Education (1954): We can't require blacks and whites to go to separate schools.

• Baker v. Carr (1962): We must count the votes of all citizens equally.

• Gideon v. Wainwright (1963): We can't imprison people without providing them with a lawyer.

• Griswold v. Connecticut (1965): We can't prevent married couples from using contraceptives.

• Loving v. Virginia (1967): We can't prevent whites and blacks from marrying one another.

• Batson v. Kentucky (1985): We can't strike people from juries just because they are black.

• United States v. VMI (1996): We can't prevent women from attending state-run military schools.

• Lawrence v. Texas (2003): We can't interfere with private sexual activity between consenting adults, even if they are the same gender.

In all these cases, the court forced us to act differently from the way we had been acting. When the court did all these things, therefore, it was interfering with the political process. It was thwarting the will of the majority. Legislatures, representing us, had enacted all these laws that the court struck down. But it is a mistake to think that the court was imposing its own values.
Rather, in all these cases, the court was safeguarding our own. It was telling us that we had betrayed the Constitution, our higher law.

Judges are our prophets because they, like Isaiah, Jeremiah, and the other great biblical prophets, have the difficult job of telling us when we are straying. Speaking of the Hebrew prophets, the theologian Abraham Joshua Heschel wrote: "The prophet was an individual who said No to his society...."

Time and again, Supreme Court justices have told us no, and when they have done so, the elected officials (whose support of unconstitutional laws has compelled the court to intervene), have predictably protested. But our elected officials will not tell us no - they cannot tell us no, at least not often, if they expect to win reelection.

It is true, as Mr. Bush and his allies often point out with regret, that once confirmed by the Senate, judges are politically unaccountable. But this is not something to lament. It is essential. The framers of the Constitution knew that our judges had to be unaccountable if they were to be able to tell us no - if they were to be able to do their job.

Justice O'Connor was willing to tell us no. She told us that we cannot execute the mentally retarded. She told us that we cannot place religious displays on public property because those displays communicate to people of minority faiths that they are not welcome here. With these and other votes, Justice O'Connor caused indignation. Bush, in seeking to replace her, should look for someone else who will do exactly the same.

We're often shocked by what our judges do. We should be. As Mr. Heschel said, "The prophet's word is a scream in the night. While the world is at ease and asleep, the prophet feels the blast from heaven." In seeking out a new justice, the president should locate someone who, like Justice O'Connor herself, feels that heat.

• David Dow is the Distinguished University Professor at the University of Houston Law Center. His most recent book is 'Executed on a Technicality: Lethal Injustice on America's Death Row.'

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