Lady Justice Rises

Legal Analyst Andrew Cohen Says O'Connor Fighting The Good Fight

(CBS)  Of course we know the answer. They want "Justice" Roberts to be deferential to the executive branch, not just on the little issues that move along the law incrementally but on the big issues that shake up the world. They want him to help oversee the further diminishment of judicial power; they want him to go further than Republican justices Souter, Kennedy and O'Connor were willing to go in ceding the field to the other two branches. Congress and the White House, in Republican hands, want the third branch to go along with the program and are willing to subvert the reputation and standing — and ultimately the authority and sweep — of the robed men and women who are sworn to uphold the Constitution even when that means making unpopular decisions.

Will Roberts go along? Will he pick up the mantle being left him by his predecessor and take advantage of his brief time in front of the cameras to similarly decry the attacks on judges? Will he show himself from the get-go to be his own man, a stand-up guy? Will he tell his friends and supporters in Congress to back off and leave the judiciary be? Or will he meekly take his lumps try to defuse the issue. To me, more than abortion rights or same-sex marriage or even the fight over how best to interpret the Constitution, how Roberts handles the issue of judicial independence will be his first true test of preeminent justice.

Justice O'Connor has spoken. She speaks for hundreds, perhaps thousands of other judges around the country. She speaks for a system of government where one branch cannot bully another. She speaks for a balance of power that is needed more in a time of war than in a time of peace. She speaks for Hamilton and Madison and Washington. She speaks as a Republican, a former legislator, and the first woman ever to sit on the High Court. She speaks for history and to history. She speaks to her successor and to his successor, and the only question now is whether our Congressional leaders can stop howling at the moon long enough so they can hear her.