On Monday night’s edition of “The Rachel Maddow Show,” host Rachel Maddow welcomed retired Supreme Court Justice Sandra Day O’Connor, author of the book Out of Order, to discuss upcoming cases that are set to come before the court and the landmark civil rights decisions that could result.
Maddow began the segment by discussing 1996′s Defense of Marriage Act, which stipulated that on the level of the federal government that marriage should be defined as between a man and a woman, as well as the fact that when activist Frank Kameny sued the U.S. military to get his job back after his was dismissed for being gay, psychiatrists who advocated and spoke alongside him had to do so in anonymity or risk losing their jobs. That was in 1972, just 41 years ago.
Now, she said, the country is all but completely reversed on the question of same sex marriage. A majority of Americans now support the right of LGBT people to marry.
“Here’s the big question,” said Maddow. “Does the Supreme Court care? When there are big social shifts in the perception of what is just in our country, how does that weigh on the nine un-appealable, finite judges who get to decide these things for us as a country when nobody else does?”
Justice Sandra Day O’Connor said in an interview in Parade magazine on Sunday that she is concerned about the falling approval ratings for the Supreme Court with the U.S. public. She said she believes that the Bush v. Gore decision in 2000 was a turning point for the Court, when the public began to view Supreme Court justices as perhaps more motivated by politics than by real jurisprudence.
Justice O’Connor then joined Maddow before the cameras. Maddow asked the justice if it’s a fair question, to ask what role public opinion plays in the court’s decision making process.
“The members of the court are human beings, they read the newspaper,” O’Connor replied, “and they presumably watch a little of the news from time to time. They’re not immune or restricted from being aware of what’s going on around them, but I certainly think that they are conscious of not letting that determine their decisions. They’re not running a popularity contest against other government actors at all.”
“I don’t think the court does or should be guided by public opinion on how an issue should be resolved or whether to take a case,” she continued. The justices must act on their view of the law and do what they feel is best.
“The fact that a great many people care about an issue is not a governing factor,” she said, in how the court rules.
When Maddow asked O’Connor whether she feels it is appropriate for justices like Antonin Scalia and Clarence Thomas to give speeches to political organizations and to be functioning as political activists, the justice demurred, saying that individuals can be asked to speak on issues without being political actors.
“I’m sure that in doing that, the justice doesn’t want to be perceived as a political activist at all, because they decide the cases, not based on their personal views, but on their perception of the legal doctrines that govern their decision,” O’Connor said.
Watch the clip, embedded via MSNBC, below: