CHICAGO – Supreme Court Justice Stephen Breyer (search) said Tuesday that rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.
Breyer urged lawyers to help educate people about court responsibility to be an independent decision-maker.
"If you say seven or eight or nine members of the Supreme Court feel there's a problem ... you're right," he told the American Bar Association. "It's this edge on a lot of issues."
Sen. Lindsey Graham (search), R-S.C., who was speaking with Breyer, said: "The politics of judges is getting to be red hot." He said Supreme Court rulings on the Pledge of Allegiance and Ten Commandments have captured the public's interest and polarized Democrats and Republicans.
"There's nothing that's not on the table," former Solicitor General Theodore Olson (search) said of the court's work, which this fall includes issues like abortion, capital punishment and assisted suicide.
Breyer said the nine-member court is focused on constitutional limits on major fights of the day. "We're sort of at the outer bounds. And we can't control politics of it, and I don't think you want us to try to control politics of it," he said.
Congressional leaders including House Majority Leader Tom DeLay, R-Texas, have criticized justices in recent months. DeLay was particularly critical of the court's refusal to stop Terri Schiavo's death and at a death penalty decision that cited international cases.
Breyer defended using overseas legal opinions as a guide only, adding, "It has hit a political nerve."
Breyer, Olson and Graham were discussing the future of courts on the final day of the ABA's annual meeting in Chicago.
Also Tuesday, the group was debating whether to endorse federal protection for journalists who refuse to reveal their sources to prosecutors. Passage of such a measure would authorize the organization to lobby Congress, where "shield law" proposals are pending.
Judicial independence has been a major theme at the meeting of the ABA, a 400,000-member group.
The group's policymaking board passed a resolution urging elected officials and others to support and defend judges. New group President Michael Greco (search) of Boston said judges have faced physical threats, and threats of impeachment from Washington political leaders unhappy with court decisions.
"If we do not protect our courts, our courts cannot protect us," Greco said.
On another subject, Greco defended the ABA's role in checking the background of Supreme Court nominee John Roberts (search) and other federal judicial nominees. The committee has spent the past two weeks reviewing Roberts' work on an appeals court and interviewing people who have worked with him.
"The ABA does not, and we will not, protect the interests of any political party or faction, nor the interests of any ideological or interest group," said Greco, who previously oversaw the judge review committee.
Breyer told the group that the retirement of Sandra Day O'Connor is a personal loss and loss for the nation.