[This review was published in The Journal of Social, Political and Economic Studies, Summer 2003, pages 251-254 (and also in the Fall 2004 issue of the same journal, by oversight of the editor, pp. 363-366), in an edited form. What follows is the review as submitted for publication.]
The Majesty of the Law: Reflections of a Supreme Court Justice
Sandra Day O'Connor
Random House, 2003
This book 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 be 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) and even though she wasn't philosophically committed to a conservative worldview.
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 "liberal" 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 what others speak of as the neo-conservative project to make the United States the leader in "shaping the world" in the image of contemporary American social egalitarianism.
It isn't surprising that she holds this worldview. Most Americans in the broad "elite" made up of the professional classes and the well-placed hold to it.
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. Others will ask: What business does she have, as a Justice on the United States Supreme Court, to make that vision "the law of the land"? Where does she obtain that power as a judge?
American "liberals" have long argued that the justices of the nineteenth century were illegitimate "activists" when they incorporated a classical liberal reading into the Constitution. Two observations about this come to mind. There are those who would ask whether it was truly "activist" to have construed the Constitution in light of the philosophy that prevailed at the time the Constitution was written and during the first century of the country's existence. There is no doubt that the broad mandates (of the Bill of Rights in particular) need construing. At one time it was common to suggest that a construction in keeping with the original mindset would not be a usurpation and, as such, would not require amendment through the amendatory process that is set out in the Constitution itself. Such a construction would voice the "original intent" (at least in a broad sense as distinguished from a narrow reading).
The second thought is that there is some disconnect if one is to say that the nineteenth century classical liberal interpretation was illegitimate activism on the ground that "it read Herbert Spencer's Social Statics into the Constitution," while the person at the same time says that an incorporation of the current egalitarian project is, as O'Connor argues, a wholesome "democratic process" pursuant to "the Rule of Law." If it is usurpation to invest the Constitution with a social philosophy in the one case, why is it not usurpation to invest it with a much later social philosophy in the other?
The reality, of course, is that the Supreme Court of the United States has fashioned itself into a permanently sitting Constitutional convention. Nine lifetime appointees are given, and readily accept, the role of philosopher kings. The irony is that they do so in the name of "democracy" and the "Rule of Law."
A term has come into use that describes the situation well. It speaks of "totalitarian liberalism." O'Connor and the American governing class are for "democratic process," for "women's and minority rights," and for "diversity," all of which seems to them to fit into benign progress toward a better world; but she is able to speak repeatedly of the need to give "unremitting attention" to "pushing the country" and "changing minds everywhere." The Supreme Court is a "teacher," not merely an applier of established law. Americans in the past were "separatist" and illiberal; Americans of the present stand in need of an on-going refashioning; and Americans of the future will be admirable because they will have become, in effect, a new and enlightened humanity. The vision is "liberalism" of a sort; the "totalitarian" aspect comes from its being in the tradition of the Jacobins and the Bolsheviks, who demanded the molding of humanity as though people were clay.
One would wish that O'Connor would demonstrate some consciousness of all this. She doesn't. That failure allows her to be well adjusted to the age in which she lives. Self-satisfaction and contentedness are the primary moods of the book.
Dwight D. Murphey