Retired Supreme Court Justice Sandra Day O’Connor was in New York City recently to attend a conference at Parsons the New School of Design. She has discovered that young people are better acquainted with the judges on American Idol than those on the Supreme Court. Her remedy is an electronic game she helped develop called Our Courts, which will debut in September.

Ignorance of the judiciary and civic education in general, O’Connor maintains, is a result of the overemphasis on math and reading in the Republican No Child Left Behind program. "We can't forget that the primary purpose of public schools in America is to produce citizens who have the skills and knowledge to sustain our form of government. Public education is the only long-term solution to preserving an independent judiciary and constitutional democracy."
http://blog.wired.com/games/2008/06/justice-oconnor.html

That’s pretty straight talk from the nominee of President Reagan, a woman who often cast the swing vote between justices on the left and right and one who helped put George W. Bush into office.

Follow up:

Frankly, I don’t think any electronic game can substitute for well-taught social studies, but it was refreshing to hear her define the problem.

Sad to say, many Americans first learn about the judiciary when they bump up against it. This year, the U.S. prison population reached 2.3 million adults. That’s one in 100 Americans, the largest percentage of citizens of any nation, and for African Americans and Latinos, the percentage runs much higher. China, which has few safeguards for the accused, runs a distant second in numbers and percentages incarcerated, according to the Pew Center on the States.

And since rehabilitation came off our prison agenda in the eighties, it’s safe to say, most people leave incarceration no better educated or prepared to live free than when they went in. In fact, the Pew study showed that many prisoners are jailed again after they test positive for drugs or violate some other parole restriction. You can read the study at
www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf

Although I didn’t see mention of it in the Pew study, another penalty of incarceration is that in many states, convicted felons still can’t vote after they serve their time. So when we send a man or woman to prison, we may be disabling that person as a citizen for as long as they live. We should ask ourselves what it is about the most powerful nation on Earth that feels compelled to lock up so many of its citizens and render them voteless.

Deliver the Body

If anyone was paying attention, O’Connor’s announcement was a good set up for the Supreme Court’s affirmation by a single vote of the right of habeas corpus on Thursday. You know, the one in which prosecutors are required to bring defendants before a judge and charge them—or let them go. The right secured by the English Parliament in 1679 from King Charles I, which the current occupant of 1600 Pennsylvania Avenue considers dispensable. That one.

This could be what educators call “a teachable moment.”

The reign of George W. Bush is mercifully coming to an end, but Boumediene v. Bush illustrates the slim margin by which the rule of law hangs. It’s a different issue from that raised by Justice O’Connor, but not unrelated. I’m no lawyer, but I once took for granted that all nine Justices would be on board for the basics of English common law.

Since the attacks of September 11, 2001, the president and his administration, with the support of many members of Congress, routinely argue that we are engaged in an endless war against terrorism, and civil liberties are a frill we can no longer afford. Somehow if they and their appointed agents eavesdrop endlessly on our communications and lock up all the people who might be dangerous, we will be safer. If a Justice could be accused of crying wolf, certainly we should consider Anton Scalia’s warning that this ruling “will almost certainly cause more Americans to be killed,” as such.

But the majority of the Court has ruled that our Constitution extends to all the territory under our jurisdiction—even to Guantanamo Bay where we share an island with the Castro dictatorship under an old military treaty— and to every one in it. Whether or not they are U.S. citizens. Even if they have been accused of direct involvement in acts of terrorism. With which, of course, we can charge them. Obviously, the right of habeas corpus has not served as a serious deterrent to filling up our domestic prisons.

The gates of Guantanamo were not flung open, but the 270 people there, 185 of whom are imprisoned under restrictions greater than we use on our worst mainland criminals, are now entitled to a hearing to determine whether or not they should be charged or freed. Some 200 petitions are already on file in the federal district court. Now the government can’t use hearsay or evidence obtained under torture as evidence that they should be charged. Does that include waterboarding? The administration must want to know.

Human Rights Watch says the manner in which detainees are held at Guantanamo—22 hours of isolation in poor light with two hours of exercise, sometimes at night, with no foreseeable release— has most often led to mental illness and attempted suicide.
www.hrw.org/doc/?t=usa_gitmo

Will they plot against us if we bring them before a judge? How many men held under such conditions for seven years are even capable of articulating a defense? Perhaps we’re looking at the wrong population.

On Friday, 30 insurgents on motorbikes and two suicide bombers blew up the mud walls of the main prison in Kandahar, Afghanistan. Some 1,200 prisoners were freed, including 400 Taliban members. Stack them up against the 270 guys at Guantanamo, and I know which ones would ring my fear meter. It’s not the Supreme Court’s job to weigh such dangers, but you have to wonder if the uproar against Boumediene has more to do with the potential for an internal shift in the U.S. balance of power than the threat of terrorism.

Candidates Weigh In

It didn’t take long for the presumptive Republican nominee to announce that Boumediene was the worst decision he could remember. And, predictably, the presumptive Democratic nominee announced he thought it was a fine decision. So we have a clear picture of what hangs in the balance in the November election.

Senator McCain says he would look for judges like Clarence Thomas and Samuel Alito, the Justice who replaced O’Connor. Senator Obama has not singled out any judge as a model for whom he might pick. It’s safe to say he wouldn’t look to the Federalist Society, which Justice Scalia helped found in 1982 to address what he perceived as the liberal bias of the judicial system. Thomas and Alito are Federalists, and although Chief Justice John Roberts denied membership, his name appeared on an advisory committee list. The Chief Justice dissented from Thursday’s opinion saying that it “left the door open for charges of judicial activism,” code for all the right says it hates.

As editor of the Harvard Law Review, Obama managed to strike a balance between left and right, and that seems to be the course he would follow as president. Certainly his education has prepared him for the job of choosing judges well.

We have seen since 2000 how reckless it is to elect a president with little intellectual curiosity or discipline. John McCain ranked way down the line when he graduated from the Naval Academy. He has said he doesn’t know much about economics. It’s clear he doesn’t know much about the law either. And that’s dangerous.

Maybe we can get Justice O’Connor to send him her game.