Kathleen Sullivan (Dean, Stanford Law School)
Thank you, Mr. Neil, for that extraordinarily generous introduction. Thank you Justices O'Connor, Kennedy and Breyer for gracing the stage and this illustrious event. Thank you all of you judges who stood a moment ago to be recognized not only for your attendance, you give us honor by your presence. But for your years of public service, all of you together do participate in what we must be proud of as one of the crown jewels of the American system of government, air independent judiciary, which is indeed the envy of the world. And that is really our topic today: the envy of the world. Why is it? What if anything, should we envy about judiciaries in other nations? And I would just open this discussion of comparative judicial systems, first by telling you a little bit about the people on this panel, and then by introducing the topic.
Let me remind you, as you already no doubt know about each of these wonderful justices from the western United States. First, that Justice Sandra Day O'Connor is twice a Stanford Graduate. She received both her BA and her law degree from Stanford. She was at the very top of one of the most talented law school classes ever in our holes, the class of 52, which also included the Chief Justice of the United States, William Rehnquist. While she was at Stanford Law School, Justice O'Connor was a member of the Law Review. And indeed, it turns out that she met her husband, John O'Connor, and spent some time doing cite checking for the Law Review together in the old law library. I think there is something also to do with Dinah's shack and a few drinks thereafter. But in addition to her Law Review service, she was a stellar student. She went on to serve in a varied and distinguished career in public service in Arizona, serving as Assistant Attorney General, as state senator, as state senate majority leader and as a judge on the Maricopa County Superior Court and the Arizona Court of Appeals. In 1981 President Reagan had the great good wisdom to nominate her to fill the seat vacated by Justice Potter Stewart as Associate Justice of the United States Supreme Court. And as she walked up the steps of the United States Supreme Court building, escorted by the late and courtly Chief Justice Warren Burger, I can tell you as a person who was then a graduating law student, a woman who was a member of a class that was only 25% women, that that moment when the first woman ascended to the United States Supreme Court was a moment of extraordinary pride and great elation for all of us, not just women, but all in the country.
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So I'd like to open the discussion just by trying to hear what we can learn, what you have learned in your visits with judges from other nations, with your counterparts from other countries. Thoughts about what we can learn, what you have learned, what they have to teach us. Justice O'Connor, can you start us off?
Sandra Day O'Connor
I guess the overall theme I would suggest is that in today's world with an expansion around the globe of democratically elected governance, we see the need for what we call a rule of law. Now that's the shorthand expression for the concept that we are We need in democratic societies to live in a world where legislative bodies enact laws. And we have perhaps constitutions or treaties that establish the the fundamental ground rules or the nation, but where those fundamental rights are protected by the existence of an independent judiciary that is able and willing to enforce personal and human and individual rights that people have under those systems. Now, this is easy to articulate but hard to achieve. And we see a worldwide effort today to try to enhance or develop institutions that will enable countries that are just recently forming or countries that in the past have had a different form of governance. Trying to change trying to help them develop the institutions that will serve in that way. So some of the discussions you've had or with just justices or judges from countries with ancient traditions and judicial systems that in some respects resemble ours. Others has been with the new countries of Eastern Europe.
Kathleen Sullivan
I know you've been very involved in the Central European Law Institute CEELI, and the development of new judicial systems for the emerging market economies of the former communist countries and new regimes in South Africa, emerging regimes and China, and elsewhere in the world. Is there a great difference between your conversations with judges in the countries that are most like ours and countries that are newly emerging into a democratic state?
Sandra Day O'Connor
Absolutely.
In, with newly emerging democracies, you're in the fundamentals, questions of how judges should be selected. How can they be shortage of independence. What do they do when a member of the executive branch suggests to them how they ought to decide a case? Are they able to go against that kind of advice or direction? I mean, these are pretty elemental questions. And with more established institutions like that, from which we got our own system, Great Britain, your conversations would be very different, they would hinge on the details of the kinds of systems that we share.
Kathleen Sullivan
Just to remind everyone, we have a lot of structural protections of judicial independence in our system. article three of our constitution says that once nominated by the president and appointed with the advice and consent of the Senate, Supreme Court justices serve for life, and they can't have their salaries reduced by the Congress. And this gives a kind of structural reminder that we think of our judicial branch is quite independent of political pressure, our Federal Judicial Branch, many states have similar protections. They're not to the same extent in some other countries don't necessarily take the independence of the judiciary for granted. Some regard the judiciary is an outgrowth of the executive branch and is subject to political pressures. So I think this point about judicial independence is so fundamental and judicial selection, as you described, Justice O'Connor is very important to it. Justice Kennedy, what what kinds of things have you learned the most from judges of other countries or what have you come to observe about them?
Anthony Kennedy
Well, this, this is a very fascinating time for people that are interested in constitutions. Incidentally, I sit right next to Justice O'Connor on the court, and part of the decorum and the tradition is that if I say something, she has to listen politely and without a look of puzzlement. I'm afraid that when we start again in two weeks, this hat is going to go up when I started.
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Sandra Day O'Connor
And the judiciary has a role to protect individuals from arbitrary action by the state. And when the judges are considered to be part of the executive branch of government, and are hired like bureaucrats and can be told what to do, it is much more unrealistic to think those judges can step in when the state is acting arbitrarily in conflict with that nation's basic principles to harm an individual. That's why it's important and it's so difficult to achieve in a new forming country where the tradition has been judges who are told by the executive branch, what the outcome should be when the state is involved. And where the executive branch determines the selection and the tenure of the judge and the privileges of office, it is a very difficult thing. And when you overlay that up with the fact that in many of the emerging democratic countries, judges are paid very little, if at all, you've got a real problem.
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Anthony Kennedy
I was sitting next to Justice Breyer, early in the morning for the European Court of Justice in Luxembourg, in en banc session with all 15 judges. There are 11 different booths for the 11 different languages. And they had something rather, where the English attorney was rather boring. And it was nine o'clock in the morning and I want to make–
Kathleen Sullivan
That doesn't happen in your court.
Anthony Kennedy
Well, well, one
of the reasons is because if it is, we start to talk.
Stephen Breyer
We never give the lawyer a chance to be boring.
Anthony Kennedy
But Justice Breyer sees that I might be having a difficult time. He said, turn to channel three. And I look, and I look in the booth and there's a translator, and he's going like that [gestures], and it's the French. This was the most important case in the history of man. But remember, the professionals, the judges, the the highly educated administrator, they can handle a multilingual context. One of the important things to ask in Europe is whether you can have a political dialogue among all of the citizens of Europe, in 11 languages. You have to have a political dialogue to sustain a constitutional dynamic. You have to have ongoing concern. constitutions aren't made by academics and just foisted on the people, it's the people's constitution. And they have to see if they can develop critical cultural, ethical dialogue. And that's difficult to do in 11 languages.
Sandra Day O'Connor
Well, it's also difficult to do in the European Union in the sense that the parliament for the European Union has had, thus far relatively little power. And the people elected to it have not really had a forum in which their voice and their vote might make a difference. And where policies, laws and rules for the entire European Union are made by very unrepresentative bodies, the Commission and the Council of Europe. And these are institutions that are not representative of the nations they serve in any sense of responsibility. That an elected member of parliament it. And so it's going to be very interesting to see whether that kind of a system is going to work in the sense that Justice Canada,
Anthony Kennedy
this this is a vital point because I thought the European Union had three choices, one, to have more democratic control, two to be less ambitious, or three to put democracy on hold for a while. I don't think you can put democracy into a temporary receivership. And what's happening now is all of the weight of developing this consensus is being put on the court. And this is dangerous. For courts, you cannot overload a judicial structure with basic economic and social decisions.
Kathleen Sullivan
This is a profound observation that law may be leading politics in some sense in the integration of Europe. Looking back at our own constitutional history, Justice Kennedy, don't you think that law played a unifying role to some extent in our own development? Justice O'Connor, you agree with that?
Sandra Day O'Connor
I think by and large in our own system, our own court has been basically reactionary. I think it has reacted when necessary by taking and resolving cases that arise out of actions taken by the other branches of government. And in the European Union, one does have the sense that perhaps more responsibility is being thrust on the European Community Court of Justice than we had initially. I don't think they had an opportunity there to have years of experience of reacting. They've been thrust into the forefront more.
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This is such an interesting time in world history. There has never been a time I think, in world history where so many nation states are trying to form themselves into democratic societies over a very short span of time. We see it in all of Central and Eastern Europe and parts of Asia, in parts of Africa, in parts of Latin America. This is astonishing. And because we have had a longer tradition than most countries, we have a judicial system that has functioned reasonably well. We are in an especially good position in this country to try to help these emerging countries. We live in an era–I don't even want to use the term but I might as well–an era of globalization. We are linked so closely with other nations of the world through the stroke of a computer key, where there were together. And international boundaries are falling by the wayside in the sense that they're penetrated by computer technology and by a flood of refugees. And by this emergence of so many new nations, now we have to help them develop institutions, first and foremost: laws, constitutions, and judicial and other institutions that will at least enable them to function in a free market society. And these aren't things that are easily accomplished. I think, Americans tend to think, "Oh, well, we can do that." And then a few years, everything's fine and the economies will take off and all will be well. And we have to recognize that it is a much slower process than that, but one worth trying to work on.
Anthony Kennedy
And your your first temptation is to tell people in a newly emerging democracy, how do you how do you have a system like I should say, well, you have a Magna Carta, then you wait 450 years. Then you have the Glorious Revolution, then then you have the constitution written by brilliant people in Philadelphia, then you have a civil war. You can't. People want democracy, they want it now. There's an urgency that doesn't easily lend itself to the maturation of the ethical substructure. Justice Breyer mentioned and of course, totalitarian countries were busy destroying ethical substructures. So even the ancient ones have to be recreated.
Kathleen Sullivan
So there's a tension here between the ideas of judicial review and judicial independence. And as all the justices have suggested, the importance of those values to the prevention of tyranny, the protection of liberty, the bulwark against arbitrary action sizes of power. And on the one hand, those are noble and lofty ideals that can be explained and advertised and exported. And yet there's this matter of the ethical substructure, the constitutional culture, the habits of mind that enable citizens to accept the legitimacy of the work of the courts, judges. And other nations often say to our supreme court justices, what we admire most about you is that you have the ability to have your decrees obeyed. And that obedience comes not just from the force of the pen, but from the acquiescence of all in this society to the legitimacy of the work of the courts.
Sandra Day O'Connor
So–exactly. I, Justice Kennedy can give you contemporary examples in Russia, of the Constitutional Court handing down a ruling and nothing changes, nothing happens. But these matters are quite complicated.
Stephen Breyer
I remember hearing in respect to rule of law and Eastern European judge described how in his country and his court, a handed down rulings contrary to the interests of the government, and the government in that instance, ignored them. But he said, the public learned about it. And even in that country, which is not noted for its democratic institutions, the public did react. The court is far more popular than the executive. The Parliament has taken note. And it is now rather unpopular in that country, to be contrary to the institutions of the court, and even in that particular nation, popularity in this respect matters. We're not always dealing with countries that are totally totalitarian. In many of these countries, there are degrees of liberty. And in such a circumstance, particularly when people can watch TV and see what goes on elsewhere, it is possible to build a rule of law. And building a rule of law in part depends on what we do by example, and in part depends on what others do. And that's why these interviews.
Sandra Day O'Connor
That brings, Justice Breyer's comments bringing to my mind another key ingredient of making democracy work. And that is, he mentioned that the public learned about the decision and about, of the court and the government's position. In many of these emerging democracies, the press and media are controlled by the government and the public would never learn these things. And I think that's another key ingredient to any successful transition to a free market society.
Kathleen Sullivan
Absolutely. So a great deal turns on our freedom of the press and our principle of open government airport issues, its opinions, all can read them, all can read them now instantaneously online. … Justice O'Connor, I'd like to just take us back to Justice Breyer's remark earlier that a lot of what you can learn from foreign courts is serendipitous, and that you may have had surprises along the way and encounters with foreign judges who come here or in your travels abroad. What are some of the surprises or surprising contrasts or comparisons that you can recall?
Sandra Day O'Connor
There's so many,
but one kind of pops into mind. John and I made a visit to India for the purpose of my giving several lectures there and meeting with members of the Indian Supreme Court and other courts in their regions. And you may remember the incident where a Muslim Temple was destroyed by, apparently, some Hindus who thought that the location historically was for a Hindu temple. And the dispute was a very traumatic one in India. And it led to some litigation that had made its way to the Supreme Court in India.
My visit coincided with the day that the Supreme Court was, a panel of their Supreme Court was hearing that case, and I was invited to sit on the bench with the judges of the Supreme Court. And I sat up there on the bench and listen to the lawyers argue in English to the court about principles of religious freedom guaranteed in the Indian Constitution, a nation that certainly is the largest by far, in population, of a democratic society, and has just layers upon layers of different ethnic and cultural backgrounds of people. And we listened to these arguments about religious freedom principles. And the lawyers were arguing from American precedents, from our court, some of which about some opinions I had authored. And it was the most amazing experience I've ever had.
Kathleen Sullivan
Did they know you were there?
Sandra Day O'Connor
Oh yes, I was, I had been introduced. And there I was on the bench with the Indian judges. And afterwards, we got off the bench and went back and the judges were going to have their conference. And of course, I didn't offer them any advice. But I followed their decision later, and it was the one I would have made, I must say.
Kathleen Sullivan
Wonder–could you just, that's a wonderful story. Could you just set the stage for us a little bit more about what the Indian Supreme Court looked like? Did it resemble our Supreme Court in any respect and the way it appeared or the way…?
Sandra Day O'Connor
Although, like most High Courts in other lands, they don't often sit en banc as we always do. They tend to have larger High Courts, and the judges will sit in panels of three or five, and only rarely all the judges will sit together on our corridors. You know, all nine of us participate in everything and we always are together on the bench. So, in that sense, it was a smaller panel, but it was conducted with the same dignity we would expect to find that in our courts. And the advocates were good. They appeared in robes as you would find in Great Britain, rather than in informal attire, as we might see in our court.
Kathleen Sullivan
Wigs as well?
Sandra Day O'Connor
Oh, yes.
Kathleen Sullivan
Okay. Were there any women on the Indian Supreme Court?
Sandra Day O'Connor
One was selected after my departure and she's now retired. And that was surprising to me really, because there are a great many women lawyers in India. And I was surprised that the tradition of having a number of women on their highest court's bench had not yet taken hold. And India does the curious thing. They they don't appoint justices to their nation's highest court until a justice is perhaps 55 years of old of age or older, and then they have to retire at 60. So they don't serve for very long intervals of time.
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Kathleen Sullivan
In other countries, though, have you seen anywhere else the kind of admiration and reverence in which the people hold our United States Supreme Court every day when you hear arguments in Washington? There's a line outside between the court and the capital for the people wanting to come in and hear how you hear cases and how you do justice. All of our courthouses are open, when judge Justice Breyer as Chief Judge Brier Superintendent The building of the new majestic courthouse in Boston. He studied Renaissance architectural drawings to see how the courthouse could be integrated with the public space so that it would be open to the people and the people could come see and interact with the world of justice. In other countries, how do the people hold the courts? Do they see them as another beer IRA's?
Sandra Day O'Connor
It varies from country to country. Certainly in Great Britain, there are some enormous respect for the court system, and there should be. They are very impressive in Scotland, in Ireland in Australia, in Germany. Germany's done a fabulous job post-war, of constructing a court system that I think the German people respect and admire. It's the most impressive thing to see. And France has been very successful with a most unusual system with their interface between people and government agencies through the institution of the console data with is unlike anything we have really, or that other countries have. It varies enormously from country to country.
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Sandra Day O'Connor
I, there's one other thing that maybe we ought to touch on today. It is true, which was your opening premise that I think our judicial system is pretty widely admired around the globe. But I think it wouldn't be fair enough to recognize that we have problems within our own system, too. And maybe we can look elsewhere to help solve those. I see looking around a great many legal problems in need of solutions for people who can't afford lawyers or legal advice or litigation. And I see that often taking a case to trial in a courtroom isn't the best way to solve it. There are alternative means of dispute resolution that we have to learn and we have to adapt. And I see one other thing that I find troublesome in our own system. And that is that we have a good many citizens in this country who think that justice is for just us, the privileged you at Stanford, the upper class, but not for them. It isn't working well. There are many African-American citizens who think the system operates unfairly for them. And I think we would be remiss if we don't acknowledge that we have some work to do in our own systems to try to improve what we have, although we have been blessed with general, worldwide recognition. But we're not perfect.
Kathleen Sullivan
I think that's an extraordinarily important point. And in fact, is reflective of the theme that we've discussed earlier, which is that we are open and self criticism is part of openness. But I wonder, Justice O'Connor, if there's any other system you've ever seen or admired, that does a better job of distributing justice to a greater number of people? … Is there another nation that does better at providing equal justice for more citizens under law?
Sandra Day O'Connor
That's hard to say. Numerically, of course, the Indian court serves a great many more people. But their Supreme Court is literally drowning in cases because it doesn't have discretion in selecting the cases it hears. And this is a vast gulf of difference in most High Courts around the world compared to ours. We've been blessed here because Congress has given our court discretion to select the cases it should hear. I think we exercise that discretion in a responsible fashion. And that's one thing that other High Courts around the world envy because they have too many cases. And you're not going to get justice if the High Court has to take your case, but it will be eight years before it's heard. That doesn't work. So I can't look at another nation's system and say, yes, clearly, that's better than ours. And I'm not close enough to it to make that judgment. But I think we nonetheless have a lot to learn, you know,
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Anthony Kennedy
We have to be careful not to think of rights as just those privileges that are enshrined in the constitution and that are enforceable by the judiciary. I don't think it's a decent society. When you are in in Washington, DC on a cold day, and there's a guy on a steam grate and you say, well, I've got the constitutional, you know, you have a right to, you can buy a TV station and you have a right to a grand jury trial. He wants something to eat. Now, many constitutions in the world have these so called affirmative rights, social entitlements. And when they came to us in Washington 15 years or so ago when they were writing these constitutions, they said we can't ratify our constitutions unless you put those rights in. This is a political, you can't do it. We said that based on our experience, from our perspective, these rights should not be judicially enforceable, these affirmative rights, because it's the allocation of resources, this is for the political decision maker. That does not mean the right isn't imperative, that does not mean that a decent, caring society must provide for those rights. There are rights that judiciaries cannot and ought not to enforce their rights all the same.
Kathleen Sullivan
Fair enough. Justice O'Connor, has this been an obstacle with the Central European nations trying to talk about the difference between affirmative social rights and other kinds of civil liberties?
Sandra Day O'Connor
Oh, yes. It's an issue for every nation that's trying to design its own constitution, how many of these goals, if you will, for citizens in terms of education, on health care and so on, should be incorporated into the constitution? And if so, whether you're going to qualify the judicial enforceability among rights. And it is an issue.
Kathleen Sullivan
Enforceability is a profound question. After all, the 1978 Soviet constitution contained the guarantee of a right to work for all. But if you can't furnish an economy in which that guarantee can be realized you may trivialize the force of the Constitution. that guarantees
Anthony Kennedy
you corrode that you debase the currency of the Constitution, that constitution must have the reverence and the respect of its people.
Kathleen Sullivan
And ours has been amended only 27 times in the history of the nation in large part because we've had the institution of judicial review that allows us to adapt to changing
Sandra Day O'Connor
That's an important point. For a long time, our country was one of the only ones in the world that had the principle of judicial review, the power of the courts to find a law enacted by Congress unconstitutional. That was considered a remarkable notion. And in these intervening years around the world, we're seeing more and more countries decide they are going to have enforcement powers in the courts in the nature of our own. We see Canada that adopted a bill of rights, not unlike our own and undertaking judicial review. We now see, next October Great Britain will have adopted the Convention on Human Rights that it proposed itself after World War II, but which was never enforceable in courts in Great Britain. And now it will be. And these are remarkable changes, I think, that we're seeing.
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Kathleen Sullivan
Justice O'Connor, apart from India, is there any court you've ever wished you could sit on at least for a day?
Sandra Day O'Connor
Well, most of them, but I would be very interested in sitting for a day with the Russian Constitutional Court. I become acquainted with a few members of that court. And I would be fascinated to sit on and understand the inner dynamics of that court that is trying to function in such extraordinarily difficult circumstances and talk to them about their problems with federalism, if you will, in the Russian Federation
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Kathleen Sullivan
All right, let me turn the question around and just ask. Justice Kennedy described movingly before one kind of judicial hero who took the concept of standing up to government quite seriously in our tradition of judicial independence. Is there any other judge whom you've ever worked with taught with or admired in another culture who you would wish if you could, if that person were able to sit with you for a day you would like to have the colleague sit with?
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Sandra Day O'Connor
Well, I don't want to single one out. But I've met a number of British judges through the years who are so impressive in their scholarship and their ability to hear and distill principles from the extraordinary lengthy arguments they allow. And then to, to sit on the bench and orally give a decision that is done so articulately and so skillfully, without ever even writing it down. Now, I just think that is a remarkable feat.
Kathleen Sullivan
It is a remarkable difference between our appellate courts and the British appellate courts…but I take it you wouldn't adopt that system? Isn't the deliberation you have in your conference crucial to the making of wh–
Sandra Day O'Connor
I wouldn't adopt it but I greatly admire it.
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Kathleen Sullivan
What would you say of this comparative, this rich and illuminating comparative experience that you've described here today, should be part of our legal education. Justice Breyer, would you like to start us off?
Stephen Breyer
As you can see, the the very occasional meeting will have in Washington, or at a meeting or a conference or a board with the judge is not–it's very valuable, but it isn't going to directly to inform the content of American law as much, in any case, as what could inform that content, which is that the bar finds out what is not controlling but what is relevant in the experience elsewhere and brings it to our attention. And that won't happen unless the law schools focus on the education of the lawyers who will eventually look beyond our own shores to discover how people are dealing with a problem that in our country is reflected in an open indeterminate issue of law. …
Kathleen Sullivan
Justice O'Connor.
Sandra Day O'Connor
I would echo part of what Justice Breyer said. We tend, at least in our courts to be very insular, we look to our own legal precedents and not those beyond our borders. Courts in other nations often look beyond their borders to try to develop a better understanding of how other courts around the world are looking at a particular issue. We must do a better job here of that. Maybe it starts in the law schools. I don't recall when I went to law school back in the dark ages that we ever talked about another nation's jurisprudence. And I'm not sure to what extent you do now. And I tend to think, frankly, that Stanford Law School has never had much of a focus on international law or legal principles. And maybe it's time now that we're entering the year 2000. Well, we've had some extraordinarily distinguished graduates who have made their mark on international law such as Secretary Christopher and we've had a dean, one of my predecessors, Carl Spaeth, who was very influenced by Dean Acheson and thought that should be our mission at Stanford Law.
Kathleen Sullivan
We think we absolutely are committed to that goal. I assure you.