James Pfister: Sandra Day O’Connor: The majesty of the law

Justice Sandra Day O’Connor died Dec. 1, 2023, having served on the Supreme Court from 1981 to 2006, a period of 25 years. Most memorials have focused on her opinions on the court. Today, I wish to introduce you to her book, "The Majesty of the Law" (2003), written just three years before she left the court. It tells us a lot about her views of government, the law, and her role on the court.

It isn’t every day that a professor is confronted by a student who says, “that book you assigned is great!” The first woman on the court, appointed by President Ronald Reagan in 1981, having graduated third in her law-school class at Stanford University, got involved in politics in Arizona, and having served 22 years on the Court when it was written, the book is substantively full, yet enjoyable to read.

She concludes the Preface: “My hope is that the historical themes explored in this book, and the reflections expressed here, will help the reader better understand our own system, and also why and how the Rule of Law offers the best hope for the future.”

Regarding the work of the Court, the main goal, with 50 separate state court systems, and 13 federal circuits, is “to try to develop a reasonably uniform and consistent body of federal law.” After describing the procedures of the Court, she states: “What is quite remarkable in my view is that each and every petition for review whether produced by a sophisticated lawyer in a high-rise or handwritten by a prison inmate or private person in her home, is reviewed with care by each justice.” She writes: “… we never stop trying … to contribute appropriately to the fragile balances of our national democracy.” She quotes with approval Justice Rutledge: “’Law, freedom, and justice — this trinity is the object to my faith.'”

Significantly, O’Connor begins the substantive law with the Magna Carta (1215) of England. Done as an agreement between King John and his rebellious Barons, it went through permutations to become part of the English Code in the latter 1200s. It put the King under law; thus, it was an early constitution. “The underlying idea of a written fundamental law that protects the people from excess by their government profoundly influenced and still continues to guide our constitutional development.” The Magna Carta was the beginning of our constitutionalism, especially in Article 39 (later Article 29): “No free man shall be taken or imprisoned or di-seized (lose property) or outlawed or exiled or in any way ruined nor shall we go and send against him, except by the lawful judgment of his peers or by the law of the land.” This is the foundation of the Due Process Clause in our Fifth and 14th Amendments.

She points out that the relationship of the Bill of Rights to the original Constitution is that of a “ball and chain.” The Bill of Rights is an “antimajoritarian document,” limiting the majority, being a “wall built around fundamental freedoms.” Of course, due to its broad language and brevity, it is a constant source of litigation, especially Amendments 1, 4, and 5. She sees the Bill of Rights to be rooted in natural law. Many other topics are covered in the book, such as the prescience of the Judiciary Act of 1789, women in the law, President Lincoln and habeas corpus, portraits of particular justices, sources of democratic stability, and the failure to impeach Samuel Chase or to pack the Court in terms of judicial independence.

To best understand Justice Sandra Day O’Connor, carefully read her book written at age 73, just three years before her retirement. You will find a practical lawyer with a belief in the Rule of Law, an international perspective, who believed that in addition to fair elections, three principles are necessary for a stable democratic government: “an independent judiciary, a free press, and a mechanism that guarantees basic rights to all.” Viet D. Dinh, former O’Connor law clerk, writes: “It was a joy for O’Connor to share her love of America and its institutions. … She was a tireless advocate for the rule of law and civic virtue.” (Wall Street Journal, Dec. 2-3, 2023).

— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Holland Sentinel: James Pfister: Sandra Day O’Connor: The majesty of the law