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A "dame" in the original sense. And some rare moments of candor.
O'Connor notes 'scary' court decision
Eminent domain 'touched nerve'
Jon Kamman
The Arizona Republic
Sept. 20, 2005 12:00 AM
One of the U.S. Supreme Court's recent decisions is "pretty scary," Associate Justice Sandra Day O'Connor told Arizona State University law students Monday.
Speaking less guardedly than justices normally do in their rare public appearances, the soon-to-retire O'Connor said a decision allowing a municipal government to force the sale of private property so it could be used in a city redevelopment project "touched a nerve, my goodness. Whew!"
"The result has been dramatic nationwide because it's caused people to take a look and say, 'Wait a minute, you can take my house just to let someone erect something more expensive to get a higher tax?' " she said.
O'Connor, making an unscripted 30-minute appearance before about 125 constitutional law students, said the case, Kelo vs. New London (Conn.), was the first time the court had taken a case in which "the public body was trying to take the property simply to get a higher tax (return)."
"And that's pretty scary. It really is," said O'Connor, who was one of the dissenters in the 5-4 decision. "You can't imagine the mail we got from that case."
The 75-year-old justice, who grew up on a cattle ranch in eastern Arizona, practiced law in Phoenix and served in the state Senate before becoming a trial and appellate judge, announced in July that she would leave the bench as soon as a replacement was confirmed.
O'Connor said she sees controversies continuing to come before the court on issues involving separation of church and state.
"We didn't do too well in articulating a clear path" in the two such cases decided in the most recent term, she said, calling the court's decisions "fuzzy jurisprudence."
The nation is understandably confused by the standards discussed in the two cases, she said.
"We ended up with 10 separate opinions," O'Connor said, following up with the punch line, "and there are only nine of us."
She said another "hot button" issue for both the public and Congress arose this year in an opinion by Justice Anthony Kennedy that referred to "the overwhelming weight of international opinion against the juvenile death penalty."
O'Connor said that reference "irritated members of Congress" who thought it improper for the high court to be citing other countries' practices rather than deciding a case exclusively within the framework of the U.S. Constitution.
Senate confirmation hearings for Chief Justice-nominee John Roberts have featured intense questioning on whether the United States should look to foreign countries for precedents.
Kennedy's opinion, which outlawed juvenile executions in a 5-4 vote, said the international factor "is not controlling here, but provides respected and significant confirmation" that they are wrong.
O'Connor, who voted with the minority in the case, called the outcry over the "international" remark one of the strongest she has experienced in 24 years on the high court.
"Be assured that we don't think these citations (of other countries' practices) are an authority" for the United States to follow, she said.
Asked by a student about the direction Roberts might take the court on a particular issue, O'Connor said, "I haven't any better idea than you."
Has Roberts been evasive, in comparison with O'Connor's confirmation hearing?
"My sense of it is that in all the hearings I have watched, Supreme Court nominees have run into the same problem," she said.
Their responses have to be, "Listen, I can't answer that," she said.
"I didn't know when I was confirmed how I would decide issues," she said.
Another student asked whether oral arguments, rather than written briefs, actually help justices decide a case. O'Connor said they do sometimes but don't help much, given a 30-minute limit and "(Justices) Scalia, Breyer and Souter interrupting with long questions."
After talking with the class, O'Connor watched in a larger auditorium as Chief Justice Ruth McGregor of the Arizona Supreme Court was presented a top award by the American Judicature Society.
It was a reunion of sorts because McGregor was one of O'Connor's law clerks in her first year on the court.
