Gavel Grab

The recent landmark Caperton v. Massey case that spotlighted a coal company executive’s spending $3 million to elect a West Virginia justice “should be a source of real concern for Americans,” retired Justice Sandra Day O’Connor warns.

Justice O’Connor, who is devoting many hours in semi-retirement to advocating an end to judicial elections, goes on to explain her concern in an interview excerpted by Above the Law:

“Look at the Caperton case…If we have to resort to litigation, we want to feel issues will be decided fairly and impartially in court by a competent judge who is not subject to influence by campaign contributions and leanings towards one side or another.”

Once elected, the West Virginia justice cast a tie-breaking vote to overturn a $50 million damage award against the executive’s company. When the U.S. Supreme Court heard an appeal,  it found that the Constitution places limits on how much special interests can tilt the scales of justice and ordered the West Virginia justice to step down from the case.

Justice O’Connor said in the interview that she has heard a lot from congressmen and state legislators about so-called activist judges, and she thought their complaints arose from a misunderstanding of the judiciary’s role.

“The Framers thought the only way you could preserve what had been created as a democratic society is to have a judicial branch where disputes can be resolved by competent, fair-minded judges who are not subject to retaliation for what they decide if it’s unpopular [with] the other two branches.

“That was a major goal of the Framers, and Americans have forgotten that. You know that’s true when you look at our 50 states. Over 20 of them hold popular elections of judges.”

In a recent speech in Virginia, Justice O’Connor gave a pointed example of the kind of case “where being right–being correct–is more important than being popular; where fairness trumps strength,” it was reported by Christopher Thomas at True/Slant.

When Mildred and Richard Loving, a bi-racial couple, got married in 1958, interracial marriages were disapproved by 96 percent of whites, according to a Gallup Poll that Justice O’Connor cited; when the Supreme Court heard the case in 1967, 72 percent of white people in a poll wanted interracial marriage banned. The high court, however, found Virginia’s anti-miscegenation law unconstitutional.

You can learn more about the Caperton case from earlier Gavel Grab posts by clicking here, and about Justice O’Connor’s advocacy by clicking here.