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Tuesday, August 11, 2009
Courts - "In Retirement, Justice O'Connor Still Rules "
From the Wall Street Journal today, a long story by Jess Bravin that begins:
Sonia Sotomayor just became the third woman to move from the appellate bench to the U.S. Supreme Court. The first woman on the nation's highest court has gone in the opposite direction.Though she retired in 2006 to look after her ailing husband, Justice Sandra Day O'Connor is still out there judging. Unbeknown even to some of her former colleagues on the Supreme Court, the 79-year-old jurist has been visiting federal appellate courts across the country, filling in as a substitute judge when vacations or vacancies leave their three-member panels understaffed.
"It's nice to keep your hand in a bit," she said in an interview in the chambers she still keeps at the Supreme Court.
As a substitute judge, Justice O'Connor has heard nearly 80 cases and written more than a dozen opinions. In her 24-year Supreme Court tenure, she often provided the pivotal vote on such issues as abortion, affirmative action and religious freedom. Nowadays, she decides such matters as whether a drug dealer could escape punishment because a search warrant listed one household trash can instead of two.
Unlike the Supreme Court, which cherry-picks only 1% of the 10,000 cases it is petitioned to hear, the appellate court must take an appeal from almost any loser in federal district court. Cases almost never plumb heady legal issues, but instead revolve around some quotidian -- some might even say boring -- facts. "Some fact-bound criminal case is not of special interest to me, I have to confess," she says. Most of her caseload is "not particularly demanding, intellectually."
Rather than probing the Constitution's subtleties, says Judge Michael Boudin, who has sat with Justice O'Connor in his Boston courtroom, "99% of it doesn't have the intrinsic political or public implications of a typical Supreme Court case." * * *
Occasionally, the justice learns firsthand the limited discretion of a lower court judge.
"I now have occasion to have to apply some of those [Supreme Court] holdings with which I didn't agree when they were made, but of course now they're binding," she says. "It hasn't caused me to change my mind on a previous dissent. But that's water over the dam."
In June, Justice O'Connor found herself outvoted on an appellate panel for the first time. Two circuit judges decided that copper tubing stolen from air-conditioning units on a Houston rooftop were excluded from an insurance policy.
She filed a vigorous dissent. "Imagine that valuable devices or appliances are sealed within a building's interior walls," she wrote. "Under the majority's view, damage caused by tearing into these walls could not be covered."
Posted by Marcia Oddi on August 11, 2009 08:10 AM
Posted to Courts in general