Sandra Day O'Connor
Thank you very much all. We're not going to take much time now because we want to leave time for discussion. But I wanted to say how much it means to those of us in the United States that members of the European Union's Court of Justice were willing to take the time in their break to visit this country to come to New York and visit us in Washington DC starting Tuesday and Wednesday, and then to have a state court experience when they conclude their visit in the state of Texas. And we had those of us in the United States learned a great deal from our visit to the European union summer before last. It was invaluable to those of us who were privileged to make that journey. And we're just so delighted that you Paul and Judah and john Sexton and the others who have participated in making this visit begins so well in the city of New York. Thank you. And I think my colleague Justice Breyer has a word in French.
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Sandra Day O'Connor
It's rather interesting because the concept of proportionality, as you described it, which you apply in looking at actions of the member states, resonates for us with the kind of language we use and applying strict scrutiny for an action, or eight that might be said to infringe some fundamental individual liberty in this country. That's the same kind of inquiry we make. Whether it's the least restrictive means whether it was necessary to achieve the objective, how important the objective was. These are the kinds of things we look at in our individual liberty to cases. So the language sounds so familiar and yet it's being applied–
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Sandra Day O'Connor
Well, you know, Paul, this discussion kind of leads into the part of the the afternoon where we get to say a word or two about what's been going on in our court says last met with you summer before this. And our focus this afternoon will be on some of the things that have been notable for us in that interim period. And one of them certainly, again, has resonances in the discussion that you have this afternoon. It has about subsidiarity and you won't use the federalism for fear of offending. Some people don't want to hear that in your member states. But we use that word freely in our Country federalism. And we've had some very contentious cases in the last two years on federalism, I can't think of anything that is divided the court more right down the line five, four, In several important decisions on the subject of federalism. Now our government is both national and federal in its character. And our Constitution gives our national congress the power to pass laws controlling a number of subjects. But all powers that are not delegated to the national government by the Constitution are set in the constitution to be reserved to the States. And we've been forced to decide a number of difficult issues concerning precisely how that division of power which looks simple Wonder it's written on the constitution should operate in actual practice. And the notion of sovereignty as a political theory derives from the great European thinkers. And the innovation of the framers of our constitution more than 200 years ago, was that it split the atom of sovereignty. And it said we're going to have the sovereign power of the federal government, but we're going to have we're going to retain the sovereign powers of the several States now 50. And this has been our problem is having split the atom of sovereignty. How do you deal with it? And the main battleground in the last two years has concerned the power of Congress, our national legislator You're to pass laws that in effect, deprived state governments have a portion of their sovereign power. And specifically, our nation's Congress has passed various laws recent in recent years, that take away from the States their traditional sovereign immunity from lawsuits. Part of the inherent nature of sovereignty is the power of the sovereign state to say, when it will allow suits against it by individual citizens. weather will permit them and under what terms and conditions this is a part of sovereignty as we understand it. But our Congress has in various areas enacted laws to permit individual citizens to sue the sovereign states or damages for certain wrongs as determined by the federal government and the subjects of our very Princeton's age discrimination and employment or employment compensation law, and even intellectual property concerns. And by permitting lawsuits against the states in these areas, our national government has tried to withdraw from the state sovereigns insert in these areas, their power to decide for themselves when they shouldn't should not be able to be sued for damages. And
our court, since we met with you last has handed down some significant decisions, holding back Congress's powers do not include the power to subject non consenting states to private suits for damages and state courts. And this has been certainly a contentious issue within our court. But at the same time, we we have acknowledged that when Congress act within a power delegated to it, it can compel the states to do certain things. States, of course, are acting in the marketplace these days in a wide variety of areas. And we had a case quite recently where states where you states are the entities that issue driver's licenses to people who want permission to drive a car. And states were selling the information obtained from citizens to get their driver's licenses to various business wanted to use it for solicitation on advertising purposes. And the states there were acting as, as a market participants, if you will, in doing that. And our court did hold that Congress can step in and tell the states now Congress has the power directly to regulate commerce some so it can tell the states know they can't do it. But when it comes to stripping the states of their power to decide whether individuals can bring lawsuits against the states, we've tended to reach a different conclusion. But I'm sure that some of my colleagues here would like the word on that because we certainly are not at one mind.
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Sandra Day O'Connor
Which is–now before we turn to our French-speaking colleague who has who has some different approaches on this subject. One last little comment, which is, as you talked, Advocate General Fennelly, about subsidiarity, and spoke of the notion that decision should be taken as close as possible to the citizens which justifies returning those decisions to the member states. Rather than at the European Union level, that goes very close to what our debate is in some of these federalism decisions and powers. Where we tend to think the powers reserved to the states are properly reserved to them in many areas, and it's better that these matters be decided there. Now I surrender to the French-speaking element of our court.
Stephen Breyer
If you think my French is bad, you haven't heard my Spanish.
Sandra Day O'Connor
I think it's good!
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Judge Claus Gulmann, Court of Justice of European Communities
The other thing I would say is that within our court, sometimes we do miss the possibility of dissenting opinions. But basically in our court at the moment I would say that we are in a period that I would compare to the John Marshall period. I do believe that's right, and for historic reasons it's probably understandable.
Sandra Day O'Connor
You know, I agree with that, too. And when the great Chief Justice John Marshall was Chief Justice in our court during the formative years when he was–the court was trying to articulate a fundamental meaning of the Constitution. He tried to get his colleagues not to write dissenting opinions. And he did that by volunteering to write them all himself. And they all said, great, you know, they didn't have to do it. He did a good job. So that was how we managed in those in that same era.
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Sandra Day O'Connor
Maybe I should explain in part how we reached the decision we reached [in type: entry-hyperlink id: sutton-v-united-air-lines-inc-1998], which–
Stephen Breyer
Which was Justice O'Connor's decision.
Sandra Day O'Connor
It was by looking at what the Congress said when it enacted it as to their intended coverage. And they used figures for the number of disabled people in the country that made crystal clear. They didn't mean everybody who wore glasses, because we know how many there are. And the numbers relied upon by Congress for coverage were quite small in comparison, so we thought we knew what Congress intended. And we also took it as a given that when we interpret a statute passed by Congress or a legislative body, if we get it wrong, Congress can change the law and fix it the way it wants to. So we don't worry as much as if it were a constitutional doctrine or interpretation of a treaty. But we think Congress can change it if it thinks we read that one wrong. Now, I don't know, you may want to open this up.
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Sandra Day O'Connor
Paul, we're nearing the end of the time and I just want to express on behalf of the American delegation, our appreciation that you have structured this beginning of our conversation here today at Cardozo law school, and that all of you here in New York have been such great hosts. It's just been a splendid beginning and I think it's been a marvelous beginning that we've had. You can see already today the initiation of discussion on various topics of mutual interest. And we're going to have a chance happily to continue this conversation in Washington, DC, and then in Texas, and it will continue here tomorrow on some very specific topics, but on behalf of the justices anyway. They can't be with you tomorrow. We want to express our appreciation. And I think judge Edward would like a few minutes to say something now if I'm not mistaken.