The Majesty of the Law: Reflections of a Supreme Court Justice

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The Majesty of the Law: Reflections of a Supreme Court Justice

Sandra Day O'Connor

Random House, 2003

This hook by Justice O'Connor will no doubt be enjoyed by many readers as a readable and not very heavy discussion of the United States Supreme Court, highlights of its history and personalities, and personal details about O'Connor's own experiences on the Court as the first woman appointed to it.

At this level, the book must be credited as "recommended reading." It contains a number of worthwhile and instructive elements, such as a history of habeas corpus, of Magna Carta, of the jury system, of the "reporter system" early in the Court's history through which its decisions were published, of the women's movement in the United States, and of the role of the privy council in the colonies before the American Revolution.

O'Connor makes a number of valuable suggestions, say, for improving the jury system, such as that jurors should be allowed to take notes and that it shouldn't automatically disqualify a juror to have heard something about the case. She recommends that jurors should he instructed generally about the law applying the case before they hear the testimony, so that they will have a conceptual framework into which to fit the testimony as they hear it. As a lawyer, I have thought for many years that the courts' failure to give jurors such a road map reflected an odd anti-conceptualism, as though ideas don't count. So I am pleased to see her recommendation.

There is a deeper reading of The Majesty of the Law, however, that makes the book "recommended reading" for a very different reason. Here, the instruction from the book comes from what it tells us about O'Connor's mental landscape and the role she sees for herself as a justice. Those are things very much worth knowing about and pondering carefully.

She was appointed by President Reagan, and therefore started out presumptively as one of the conservative justices on the Court. An important fact about the Reagan presidency, however, is that he did a number of things that reflected his being "a man of his time" and that weren't on the mark from the ideological standpoint of his most fervent supporters. One of these was his desire "to be the first to appoint a woman to the Court," even though O'Connor lacked exemplary credentials (having been a trial judge and then a judge on a lower state appellate court).

The fact that stands out most prominently from the book for those who read it more contemplatively is that O'Connor is thoroughly imbued with the worldview that today permeates the educated elite in the United States. Her outlook is a comfortable one, suiting her to a pleasant life on the Court. She is "politically correct" in her support for an egalitarian make-over of American society even if that runs counter to overwhelming public sentiment; she talks much of "democracy" and "democratic process," but it is the democracy of the egalitarian model and not of law and government's being responsive to the existing public will; her heroes in the history of the Court are the justices who led the Court away from the old classical liberal construction; she sees Americans as having more freedoms now than they had in the past; and she is enthusiastic about making the United States the leader in "shaping the world" in the image of contemporary American social egalitarianism.

What is surprising is that O'Connor never gives a moment's thought to what the specifically constitutional basis for incorporating that worldview into the United States' foundational document may be. …