Stewart Schwab
Good afternoon. Thank you for joining us today for Cornell University's second annual Milton Konvitz Memorial Lecture. I'm Stewart Schwab, the Allan R. Tessler Dean of Cornell law school. And I have the distinct honor to serve as your moderator for this unique and special occasion. thanks to the generosity of Dr. Irwin Jacobs, who received his engineering degree here in 1954. And this is Joan Jacobs, who received her degree also in 1954. From Human Ecology, the Milton our convicts, visiting lectureship and American ideals honors the spirit of Professor Milton our convicts, and especially his theoretically rich and diverse American ideals course. The purpose of their gift is to bring a prominent expert in American democratic thought, ethics or political philosophy to campus to speak to the Cornell community. Both the law school and the IR school are proud to count Professor Milton comets as a former prominent faculty member. Professor conference was a founding member of the ILR school and also held a joint appointment and was a vital member of the law school faculty. But Professor conferences legendary reputation at Cornell stems in significant part from the fact that more than 8000 students university wide were students in his American ideals course from 1946 to 1973. In this course, undergraduates examine the writings and teachings of the great intellectual thinkers and philosophy Throughout history and throughout the world, who shaped American democratic values? Just this week, I spoke with Harold Tanner, former chairman of our Board of Trustees, who told me that this course was the best single course he ever had anywhere at any institution. And justice Ruth Bader Ginsburg expressed similar sentence sentiments to my wife Norma just last summer when we had the opportunity to speak with her. It is by no means an exaggeration to say that legions of alumni regard this course is one of the great learning experiences of their lives. Now Professor convents passed away in 2003. His widow, Mary convicts, was very pleased to learn that Justice O'Connor would be this year's Canvas lecture. But unfortunately, she is at this time too frail to travel from her home in New Jersey to attend. Now to introduce justice Connor will be Professor Richard Paul number, the Goldwyn Smith professor of American history here at Cornell. Professor polymer began his teaching at Cornell in 1966 and chaired the department history from 1977 to 1980. His scholarship has received international recognition, including two major awards for his book, fighting face, the Abrams case, the Supreme Court, and free speech. He's known among both his students and colleagues, as a legendary teacher in his own right. Someone who imparts tremendous knowledge with an engaging style, and someone who has sparked a passion for ideas and lifelong learning in his students, Professor, Professor pollen Berg will introduce Justice O'Connor. Justice O'Connor will then speak and she has graciously agreed to entertain a few questions if there is time at the end. Please join me in welcoming Professor Richard Polymer.
Richard Polymer
Thank you very much Dean Schwab. I should say that the instructions for today's affair with that I walked behind Justice O'Connor and come to the podium, but no one told me about the jungle that would be here and I thought I'd probably better not try to do that. There is Sarah. Thank you very much Dean Schwab. They're very several reasons why I'm particularly honored to introduce Justice Sandra Day O'Connor, who would deliver the Milton convicts Memorial Lecture and American ideals. First, because Justice O'Connor has made such profoundly important contributions to American law. And second because Professor convinces teaching and scholarship meant so much to this university. Justice O'Connor and truth share certain things in common with Professor converts, including a personal friendship With an admiration for the late Justice Thurgood Marshall and a commitment to the liberties enshrined in the Bill of Rights in 1941, when he became an Assistant General Counsel to the n double A CP Legal Defense Fund, Milton convicts began to work closely with Marshall venda funds director, and he remained a friend after moving to Cornell A few years later, in 1954, he wrote to Marshall warmly congratulating him on his victory in the historic Supreme Court ruling and Brown v Board of Education, and he wrote similarly gracious messages when Marshall was later appointed Solicitor General and shortly afterward adjust this to the Supreme Court. For his part, Marshall congratulated convicts on his promotion to the rank of Professor This is a letter that I found and converts papers here in the INLR library. Thurgood Marshall wrote with his characteristically wry sense of humor, quote, I assume that such a position carry With it, the usual absent mindedness customary have a full professorship. On the other hand, I am very much afraid that you will not become a typical professor for if you do it will then be necessary for all of us to remind everyone else that we knew you when you were a decent fellow.
Unknown Speaker
When Sandra Day O'Connor was appointed to the Supreme Court in 1981, she became justice marshals colleague, Justice O'Connor has included a moving tribute to him in her instructive illuminating book, the majesty of the law Reflections of a Supreme Court justice, published in night in 2003. And he recounts that Marshall often relied on anecdotes or stories to make his point. But he he always used them, she explained, and here I quote her to remind us once again that the law is not an abstract concept, removed from the society it serves, and that judges as safe corridors of the Constitution must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality. Throughout her distinguished career in public service, that is, indeed what Justice O'Connor has endeavor to do. A graduate of Stanford University and Stanford Law School, she served in the Arizona State Senate and on the Arizona Court of Appeals before President Ronald Reagan nominated her to the Supreme Court. She remained on the court for nearly a quarter of a century, before resigning early in 2006. She has recently received countless well deserved tributes, including an honorary doctorate from Yale University. And now the law school at Arizona State University has been named the Sandra Day O'Connor School of Law. During her years on the Court Justice O'Connor rough path breaking decisions in many areas, including gender equality, religious freedom and affirmative action, which helped to improve the lives of all Americans. I will quote if I may just one sentence from him. majority opinion and homme de vs Rumsfeld decided in 2004. In that case, the court ruled by a five for margin that a citizen held in the United States is an enemy combatant must be given a chance to contest the factual basis for the detention before a neutral decision maker. Justice O'Connor said and again, I quote, it is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested. And it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. That assertion would have please Professor convicts who wants wrote that he quote, saw the United States Constitution, as it has been interpreted as a magnificent depository of our ideals, both individual and social. Although Justice O'Connor retired from the Supreme Court in 2006, she's remained actively involved in national affairs, serving for example, as a member of the Iraq Study Group, which reported last year, she was also continued to speak app on matters of concern to her and to all her fellow citizens. So it is our good fortune that we now have the opportunity to hear Justice O'Connor, who is spending a few days in Africa as distinguished juris jurist in residence, and she'll speak on aspects of the Supreme Court and oral argument before the Supreme Court. Please join me in welcoming Justice O'Connor.
Sandra Day O'Connor
Thank you.
Thank you.
I wish I'd had a class from the professor. He sounds good to me. And Dean Schwab and guests, friends of Cornell. I'm so glad to be here and to be with you this afternoon in this really beautiful Hall. I decided that what I would do is
talk to you a little bit about the oral argument process at the Supreme Court, the Supreme Court of the United States through the years has had occasion to wrestle with some amazing issues. It continues to do so today. And that process is very much influenced by the advocacy at the court, by the lawyers who appear before it. And lawyers who appear before the Supreme Court are usually a little bit awed by the power of the justices before Whom they appear? Because it's the written opinion that articulates the law. It often seems that the Supreme Court deliberates about legal principles, debates the arguments, and then delivers judgments without any outside assistance. Maybe it seems that lawyers exist only to digest and apply the law laid down by the court. But the communication between justices and advocates flows two ways. While a justice is answer the legal questions raised by the parties, the vibrancy of our case law depends very much on the assistance that the court receives from the lawyers who appear before it. It's the lawyers who identify and spell out the legal issues. They offer ways to resolve those issues and an oral argument they assist the justices in the task of synthesizing opposing viewpoints. As former Chief Justice William Rehnquist said, My colleagues and I disagree among ourselves about many legal questions. But I think we would all agree that a poorly presented case is apt to be a poorly decided case. Therefore, we have reason to hope that the litigants before us will do a good job. Now, all advocates are charged with the unenviable duty of looking up at nine justices a sit down below and the justices are up I on the bench, each with his or her own significant questions and views about the best way to answer those questions. Oral advocates must present the court with the strongest arguments they have in favor of their clients positions, while at the same time recognizing their responsibility to the court and to the country to try to help show Consistent coherent body of law, they must often juggle two or three different lines of questioning and their IDs in order to successfully respond to the justices individual concerns when the Supreme Court first sat yet undoubtedly had a multitude of tasks, but given the importance of legal counsel to both the parties who relied on them and to their justices who trusted them to present the cases, it's not surprising that the first act taken by the Supreme Court was admitting lawyers to its practice. On February 5 1790, only two days after the justices first met an open session. The first three advocates were admitted to practice before the court during that term 25 additional men were admitted to practice in the next term 29 were admitted. If those numbers seem small, the decade that followed was even more surprising. On average, only five attorneys were admitted a year to practice before the court. matters have changed significantly since those early days in the 2005 term. 3927 new lawyers were admitted to practice before the court. The court has averaged about 4300 new attorney admissions a year for the last 20 years. And that's more than 100 fold increase from 1790 impart more lawyers had been admitted to practice because our country has grown substantially larger and legal issues have increased in number in the complexity and justice the first court could not function until it admitted members of the bar. The history of the court would be incomplete if it didn't look at the relationship. Oral advocacy has had with the court. The Earl advocates have helped shape and strengthen the Supreme Court and without their contributions, our jurisprudence would be poor. The most controversial case the court decided in its early years was a case Cole Chisholm versus Georgia.
Chisholm claim the state of Georgia failed to pay him for goods that he had delivered during the Revolutionary War. US Attorney General Edward Randolph argued chasms case before the Supreme Court. The issue presented whether Georgia was immune to suit because it was a sovereign entity was fundamental in determining the power of the state governments and our newly developed engaged nation. The year was 1793. That year only two attorneys were admitted to practice before the court Chisholm was argued before Chief Justice marshals appointment. It was decided before the seminal cases that helped shape the Supreme Court's role in our country, such as Marbury vs. Madison. Our country had not yet recognize the importance of the court. And so perhaps we can excuse Georgia for not sending to the court, a top notch attorney. It is, however, a little surprising that Georgia decided to send no one to argue its case. Georgia was unrepresented at the argument. It's evident from the court's opinion that the court agonized over the question as faithfully as if Georgia had been present by counsel. But the matter before the court was difficult, because it failed to present the opposing view. The odds were slanted against Georgia from the start, and that loss the case in the hue and cry That followed the decision, Congress intervened and passed the 11th amendment to the Constitution. Since that day parties with cases pending before the court have tended to send the best legal advocate they can find. One prominent lawyer who often appeared before the court in the early days of our nation, was a man named William Pinkney. Like many good oral advocates who followed, paint me served as the Attorney General for the United States. His specialty was maritime law, because he started his legal career shortly before war broke out with Britain in 1812. You could imagine that he did a pretty good business. He argued 84 cases before the Supreme Court. One of the most important cases was the schooner exchange versus McFadden. In that case, a ship owned by Marilyn merchants had been commandeered into the French Navy. When the ship landed in Philadelphia, its American owners clamor for the return to them of the ship. Needless to say the case had important international implications for our new country. On the one hand, a foreign government had taken property of American citizens. On the other hand, international relationships with grants can suffer if the courts ruled against paint me at the request of the president presented the case on behalf of the French government, in that case was difficult in delivering the opinion. Chief Justice john Marshall recognized that he was exploring an unbeaten path with few of any aides from precedents or written law marshals only guide in crafting that opinion, was the oral argument that paint me delivered in presenting the case to the court Pinckney. You bet when wrongs are inflicted by one nation upon another in tempestuous times, they cannot be redressed by the judiciary. The right to demand redress belongs to the executive department, which alone represents the sovereignty of the nation. Chief Justice Marshall's opinion in the schooner exchange still serves as a bedrock case of international law. Today, it's still cited by other nations as well as by our own Supreme Court. And the opinion gives credit to Attorney General pink nice, excellent oral argument.
Chief Justice Marshall ended his opinion by saying if this opinion be correct, there seems to be a necessity for admitting that the fact may be disclosed to the court by the suggestion of the attorney for the United States. Such accolades are rarely given by the Supreme Court and paint me must have One that one quite proudly. While a court rarely recognizes advocates in the text of its opinions, paint me was only one and a long line of lawyers who have helped guide the court through some murky doctrine and confusing legal issues. Paint me typically conducted his oral arguments in court in very fine style. He dressed flamboyantly, his manner was so proud that he was accused by some of being arrogant and conceited. On one occasion and opponent in court believe Pinckney had treated him with contempt. This young man confronted paint me and explained that he had been insulted by paint nice man, shocked and surprised paint me agreed to apologize the next morning and open court. The young man who demanded pink nice respect was none other than Daniel Webster. Quite possibly the only oral advocate whose reputation top static Mr. Paint me. Webster enjoyed an extremely successful career in politics, including stance as a US Senator, and a secretary of state. But Webster's most lasting achievement was arguably his oral arguments before the Supreme Court. Seth Waxman who served as Solicitor General under President Clinton, has put the point vividly in the realm of advocacy. Webster doesn't merely sit in the Pantheon he is Zeus himself. Among the prominent cases argued in the early 19th century, Daniel Webster argued McCulloch vs. Maryland Givens versus Ogden, and Charles River Bridge versus Laurin bridge, each of which continues to be an important case taught in law schools around the nation. In no oral argument, however, were Webster's oral GIFs on better display than when he argued Dartmouth College versus Woodward in 1818. As a graduate of Dartmouth College, Webster had a keen interest in defending his beloved alma mater in the case, which involve the application of our constitution contracts clause to private corporations. Webster opened his argument and Dartmouth College with the following sentence, lm s scenario corporations or for the management of private property according to the will of the donors. Well, this simple opening was followed by a memorable conclusion. Sir, you may destroy this institution. It is weak. It is in your hands. I know it is one of the lesser lights in the literary horizon of our country. You may put it out But if you do so, you must carry through your work, you must extinguish one after another. All those great lights of science, which for more than a century have thrown their radiance over our land. It is, sir, as I have said, a small college, and yet there are those who love it. But one contemporaneous observer of that argument, commented that feelings which Webster had best or succeeded in keeping down broke forth, his lips quivered, his cheeks trembled with emotion. His eyes were filled with tears, his voice joke, and he seems struggling to the utmost to gain that mastery over himself, which might save him from an unmanly burst of feeling. Webster closed his argument by analogy, applied at Dartmouth College, to the one confronted by Shakespeare Julius Caesar when I see my alma mater surrounded like Caesar in the Senate by those who are iterating stab upon stab I would not for this right and ever turned to me and say a to okay me fee and bow to my son.
Well Webster was our from the only person in the courtroom who softer suppress unmanly feelings. Chief Justice Marshall, who was presiding was not a person easily reduced to sentiment, and he was reported to have had his own eyes filled with tears during Webster's presentation to the court. And justice Joseph story, who was on the court at that time found Webster's presentation to be similarly moving. Indeed, Justice story was so impressed with Webster's Dartmouth College argument that he suggested it was impossible to capture full Websters manner and expression, glowing zeal, the brilliant terms of diction, the spontaneous bursts of rebuke, the sparkling are the quivering lip, the speaking gesture, the ever changing and ever moving tones of the voice, which adds such strength and pathos and captivating enchantment to the orator, as his words blow rapidly on during actual delivery. Just a story also recall when Mr. minutes before anyone seem inclined to break the silence, the whole seemed but an agonizing dream from which the audience was slowly and almost unconsciously awakening. Well, I like to think that I've heard some good oral arguments that the Supreme Court this description makes me wish I had had the opportunity to hear a Daniel Webster Now as one can tell from the description of Webster's argument in Dartmouth College oral argument in the early days of the Supreme Court resembled nothing so much as entertainment. A prominent legal historian has noted in the days before radio and television, the public appreciated a good trial and a good courtroom speech. One Supreme Court Justice wrote in 1812, that scarcely a day passes in court in which parties of ladies do not occasionally come in and here for a while, the arguments have learned Council. Oral advocates today are far more restrained than they were in Webster's time. Indeed, if Webster were somehow able to view an oral argument at today's court, there's a good chance he wouldn't recognize the event. During the early era, oral arguments often took hours, if not longer. Indeed, the argument in Dartmouth College lasted three days. The argument Givens versus Ogden lasted five days. The argument McCulloch vs. Maryland lasted an incredible nine days. quantity, however, was not necessarily quality. Chief Justice Marshall purportedly once said that the Acme of judicial distinction means the ability to look a lawyer straight in the eye for two hours and not hear a damned word he says. Now, this statement is apocryphal best, but if it were true, it would explain why the Supreme Court eliminated the practice of unlimited time for oral argument, which it did in 1846. With that change the flamboyance of Pinckney and the days long oratory Webster ended. Although Earl argument became limited in time, its importance did not diminish. As a young attorney Augustus Hill garland remember the day he was admitted to practice before the Supreme Court. As I stood up before the court and took the attorney so he said, My vision became disturbed and the judges all appeared to be at least twice the size they were and more than doubled in number, and the surroundings generally appeared magnified in like proportion. On that day, Garland listened to oral argument in two cases, and remark that the experience was a beast not often spread before a young man struggling at the dem threshold of his profession. Once garland had a little experience under his belt, he practice before the Supreme Court itself, but his practice was interrupted by a contentious time in our country's history, the Civil War.
When he returned to Washington DC at the end of the conflict, the cases that he had brought to the court's attention shortly before the war began, were still pending at the court. He wanted to continue representing his clients. But there was a problem. In 1865. Attorneys practicing in the US courts were required to take an oath that they had not voluntarily supported any authority hostile to the United States. Well, under the federal testers act, any lawyer who had not been loyal to the north could not practice in US courts, girl and fought for his right to practice law again before the court. In December of 1866, the Supreme Court declared that test oath act unconstitutional Garland was able to represent his clients. In those cases that had been pending before the Civil War. Garland one those cases for his clients, but the real victory was for garland himself and for the Supreme Court. And those were very important, more so than the handful of his cases. In one sense, Garland was very different from other talented oral advocates. He was not only a lawyer who argued in front of the court, he had experienced the power of the Supreme Court firsthand as a beneficiary of its judgment. in another sense, Garland had much in common with the most prominent members of the Supreme Court bar, like Pinckney, before him, he was eventually appointed attorney general of the United States. In that capacity, he became very familiar with the court. Not only was Berlin able to contribute to the court through his advocacy, but he wrote several books Supreme Court practice, his contribution was not restricted to substantive legal matters. Garland's familiarity with the court led him to make several recommendations for the improvement of the practice of law. At the time, the court had no page limits on the briefs that were filed. So lawyers took the chance to cram every last possible argument they could into the paperwork they filed with the court. As Gerland explained, not infrequently, we see not briefs but long essays, even books in cases, drawing immensely upon that time of the court to wade through them. However, fulfilling these immense masterpieces may have been to the advocates who wrote them. They didn't do much to help the court focus its attention on the important issues in the cases. more troubling, those voluminous briefs were filed. A mirror six days Before the oral argument, this left opponents three days to fashion a reply. As you can imagine the usefulness of all those briefs to the court was somewhat limited. Today, the Supreme Court has imposed page limits on the briefs filed with it. Not only does the clock run boli advocate speak, they must Marshal their best arguments in their briefs on a schedule well in advance of the oral argument. And these changes have served to hone and Fort focus the oral arguments on the most important issues. It has allowed the justices to think better about the questions presented and prepare lines of inquiry that clarify and condense the issues. The increasing relevance of briefs at the court has not made oral argument superfluous However, by focusing attention on a few percent issues a good brief may sometimes lead to a great oral argument. For instance, Justice Robert Jackson was a gifted oral advocate when he served as Solicitor General of the United States. Some say Jackson had the best command of language of any justice whoever served on the court. This from a justice who never went to law school. He was a product of the public schools in Jamestown, New York. He did not finish college. And Jackson was crucially aware of the importance of his performance as an oral advocate.
He said over the years the time allotted for hearing has been shortened, but its importance has not diminished. The significance of the trend is that the shorter that time, the more precious each minute theatrical presentations, these soaring rhetoric simply don't occur before today's Supreme Court. Those displays are now actively discouraged. The guide for counsel but the clerk of the Supreme Court gives to the lawyers who appear contains the following advice for newcomers. The Supreme Court is not a jury, a trial lawyer tries to persuade with facts and emotions at this court counsel should try to persuade the court by arguing legal theories. Reflecting the modern view of the purpose of oral argument, Justice Ruth Bader Ginsburg has said, oral argument is an occasion not for Graham speechmaking, but for an exchange of ideas about the case a dialogue or discussion between knowledgeable counsel and judges who've done their homework. None of this is to say that oral arguments are boring. They are engrossing to the lawyers, the parties and the judges. Hodges, but modern oral arguments have somewhat limited appeal to the broader public. Because the courts modern practice has honed in on the legal, technical issues rather than than the emotional aspects of a case. Perhaps no vignette better captures the change in oral arguments style than the showdown that occurred in the cases collectively known as Brown versus Board of Education. The cases of out of the case of brown rose out of South Carolina and featured john W. Davis, arguing on behalf of the segregated school district against Thurgood Marshall arguing on behalf of the NAACP Legal Defense Fund. Now, Davis is often mentioned in the same breath as Daniel Webster as one of the most talented oral advocates to appear before the court. Indeed, when Davis served as Solicitor General all over the United States. Chief Justice Charles Evans Hughes said it was nothing less than an intellectual treat to hear Davis argue. Justice Joseph Rucker Lamar went one step further and said that Davis is persuasive arguments style, sometimes cause the justices to stop posing queries. JOHN W. Davis has such a perfect flow of language said justice Lamar, that we don't ask questions when we should. When Thurgood Marshall attended law school at Howard University, he would go to the Supreme Court at times to hear Davis argue it would be difficult to exaggerate the esteem that Thurgood Marshall had for Davis. Marshall said I learned most of my stuff from him. Marshall who argued and won many cases before the court said of Davis, he was a great advocate the greatest Every time john Davis argued I'd ask myself Will I ever, ever and every time I had to answer No, never.
With respect to their styles of presentation, Davis and Marshall, we're in Mark contrast, Mark tush now that professor at Harvard Law School described it this way. Davis's oral argument fit the public image of what oral advocacy could be. They were organized according to a rigid logic, had well formed paragraphs that flowed easily into each other, and included the flowery eloquence characteristic of early 20th century oratory. Tushnet, who served Justice Thurgood Marshall as a law clerk, noted that Marshall possessed a very different style of oral argument. Marshall was able to capture the essence of his position in a Fraser to that established the common sense morality. of his cause fishnet road, but he didn't hammer. At that point. His style was almost conversational, when presenting the most far reaching claims. Marshals manner suggested that he and the justices up to talk about the problems that justice is Mike tab so that he can make and work them out as sensible people should in the desegregation argument itself, which would be Davis's last argument before the court. This stylistic contrast was in full display. Mr. Davis was quite emotional Chief Justice Warren recollected. In fact, he seemed to break down a few times during the hearing, and Thurgood Marshall said that Davis his cheeks were wet with tears when he returned to his seat following the conclusion of the case. There is no case more important to this country's history than Brown versus Board of Education. Brown is of monumental importance of course because it promised the integration of black people that had been treated as less than full citizens. But a smaller part of Browns legacy, one that is not received much attention is the manner in which it illustrates that changing conception of what constitutes effective oral argument where Davis is lost the eloquence and emotional appeals once caused him to be regarded as the finest advocate of his time. Marshall's understated method of answering questions with succinct answers proved to be the path of the future. As the style of oral advocacy has changed over time, it's hardly surprising that the style of questioning has also changed. Indeed, during arguments early in the Supreme Court's history, there were often no questions from the bench in 1822 For one newspaper describe the Supreme Court is not only one of the most dignified and enlightened tribunal's in the world, but one of the most patient Councillor heard in silence for hours without being stopped or interrupted. While I like to believe that the Supreme Court has retained both its dignity and its enlightenment, its reputation for patience is on shaky or footing. Today, it's unusual for a lawyer to speak for more than a couple of minutes without being interrupted with a question. In john Davis's famous address regarding moral argument, which he gave to the New York Bar Association, he handed down 10 commandments that were all advocates of particular value is Davis's sixth commandment, which requires that lawyers rejoice when the court asks the question, because it's Davis notes if the question does nothing more. It gives you the assurance that the court is not comatose, and that you would have awakened at least in best digital inte