Sandra Day O'Connor
Are we in communication now with O'Connor high school?
Unknown Speaker
Yes, ma'am.
Sandra Day O'Connor
Thank you. Okay. I'm Sandra Day O'Connor, an Associate Justice here at the Supreme Court. And I'm appearing here this morning with my colleague, Justice Stephen Briar. And we're delighted to have this hour to spend with some students and talk to you a little bit about what we do and what it is. The Supreme Court does, and I think we're going to start off with
Justice Briar, because he has done this program once before, so he's had all the experience and we're going to start off with justice Briar. Right? I'd like but you're in the Benjamin Banneker academic High School.
Stephen Breyer
All right over there. We have the Mount Vernon High School over here. Good. And we have the Sandra Day O'Connor. Hi. I haven't forgotten the honor High School. Down here. Is that right?
Yes, they say
that they're there at a long distance there in Texas. That's right. Very lucky there. And I guess it's the the 10th 11th and 12th grades 12th grades 11th grade, just 12 fine. Okay, then your experts. All right by this. Let me Can I ask you a couple of questions of what your idea is. I would like to know if somebody says to you now there is a legal case going on a case of law.
In a court, what do you think it could be about? What are the what kinds of things? Could it be about?
This Any question? Anything can be anything it could be about?
copyright, it could be about copyright. That's unusual, but it's possible what's copyright.
If they copy somebody writings, and it's an original writing, and one person can be arguing as another person about that, what do you think you'd see on TV all the time that it's most likely to be about if a good chance, a murder trial or some other very unfortunate thing, but a crime? Alright, so their crimes, there's copyright Anybody else? Anybody and there's some very difficult cases really difficult, that are often tragic and hard and
child custody. That's just what I was thinking of. Absolutely. child custody.
Yeah, there could be environmental law, but look, we have child custody, marriage, divorce, in
Environmental Law Anything else? Anybody wants any ideas from Texas? Criminal Appeals? Divorce?
Yes, it was suppose you're in business down there in Texas do businesses ever get into? They get into an argument? Yes, businesses quite often get into arguments over say,
Unknown Speaker
copyrights but patents and other such things like that. Your brand they get in arguments over that because people always trying to take a good idea and try and patent it and sell it. That's true. They can get into they make agreements with each other and and often what happens you might go outside on the street corner, and if you were very unlucky, you might see they're driving down the street. What could happen a very bad thing could happen. Somebody's driving along what happens, such as a car wreck? Yeah, car wreck. Exactly. You get into a car accident two people sometimes Sue each other over car. Accidents? Yes, sir. They Yes, they do. Yeah, I'd say so we can think of a lot of different subjects you have cons. You said Bill of Rights and and environmental law and family law and criminal law and business law contracts, patents, copyrights, we could just have lots and lots of subjects. Now, I'd like to ask you in Texas, just this question, if I asked you, what city what city Do you think you'd go to where they make most of that law? What's the answer? washington dc? No, no, as somebody in Washington DC, what's the answer? In Texas, you may not know. But what is it in Virginia? Richmond, and you know what it is in Texas, by the way, Austin say you knew Washington DC, but they knew Austin. And you know why I say that? That's the kind of what I'd call a trick question. Bed Bradley. The reason I say that is because people just reading the newspaper think that most of that law is made in Washington DC, but it isn't. Almost all the criminal law is made in Austin, Texas for Texas and Richmond, Virginia for Virginians. It's made in the States. That accident law about the cars, state law. Environmental Law is mostly state, though there's some federal and you can go into Family Law, almost 100% state law, you talk about property contracts, criminal law, families, area after area, it's really states and not Congress. Congress makes some some laws that are pretty important. But if you really want to make a difference to the people in your community and your own lives, You will work in Washington. Nope. Work in Virginia, you'll go to Richmond or you'll go to your own communities or you'll be in Texas or in Austin. And and I can give you a rough idea comes as a surprise. You know how many people get into arguments? And sometimes they settle the argument. And sometimes they don't. And if they can't settle the argument, what kind of a person do they go to? The lawyers, the lawyers come in when it's a failure. And the lawyers are supposed to deal with these failures. And if the lawyers still can't fail the settle the argument, where did they go? The court and who is in court? The judge? Absolutely. So the judges deal with the real failures, nobody's been able to settle it. Now, if I give you a rough estimate, you won't even believe this, but it's true. In the state courts, in state courts, that's not federal court. In state courts, I read somewhere there were 30 million cases. Now, that was kind of a joke because about 20 million or traffic tickets. But if we take traffic tickets out of it, we still have many millions of cases. And if in fact, we look at the federal courts, we have maybe 250,000. So you see, that's that's not a perfect measure, but about 90 or 95% of all the law is state and local. And that's why I say that's where you can make a big difference your families and yourselves, but about 5% is federal law. Now we as a court, deal with federal law, not state law. Now there is one very important federal law. Perhaps the most important federal law is called what anybody in Texas know the most Important federal law. What is it?
Unknown Speaker
Like, whether it be the supreme court? The Supreme Court is not a law. But the Supreme Court deals with the law. And what do you think is the most important law that the Supreme Court deals with? The federal law? Yes. What is the most important American law of all law? I would say it is a federal law, but you won't think of it that way. But the most important document of law that's a constitution, they all said that in both schools in the Constitution of the United States is a federal law, the most important federal law and the other place where they make federal law is where it sorry, in Texas, in Congress, yes in Congress. So now you see what we're dealing with. We are a court that deals with federal Rule law, not state law. That's only a small part of the entire universe. The most important is the federal law. And probably there are loads and grabs many, many, many cases in the lower courts, the trial courts that deal with federal law and state law, then one side wins in a trial, the other side loses What does the side that lose do appeals side that loses thinks there's something wrong with the judge, he must be stupid, so that that side appeals to an appeals court and the side that loses in the appeals court? Where do they go? States Supreme Court if it's a state case, and if they lose in the state Supreme Court, where do they go? Yes. And so there we can come out of the states or the federal system, and all in all, out of these millions of cases. There are perhaps hundred thousand in the next lower tier, the state Supreme Court To the federal courts of appeals, that could because they involve an issue of federal law, come here. 8000 people every year, ask us to hear the case. We have to decide which to hear. And we hear about 100 cases a year, sometimes a little more recently, a little fewer, few fewer. And so you see, that's a very, very small number. So naturally, what we would try to do is to take those cases that we think are the most important in the sense that the other judges have disagreed about what the proper meaning of the same federal law is. And that's our basic job. Our basic job is to look for questions of federal law, where the other courts have disagreed about the meaning and we try to produce
Stephen Breyer
Single uniform, meaning across the United States. We are the final decision maker in the courts. And one justice said, you know, we are not on this court because we'll make a wiser decision. Maybe our decision will not be as good as some of the lower courts. But somebody has to make a final decision. And that's what we're here to do. Now, Justice O'Connor will go into the question, how do we do it?
Sandra Day O'Connor
Well, I think you've already spoken about that. Justice Breyer, because a very big part of what we do is deciding which petitions we should accept for review, out of the more than 7000 that are filed each year. Now that number is grown. I came to this court 1981 and that year, we got about 4000 petitions from around the country and tried to select cases.
from among the 4000. Now, some 18 years later, we're getting over 7000 a year. So what does the Justice do? I spend time every single day reading some of these petitions for search Crary that are filed and deciding whether that particular petition is one that I think the court should grant. Now we follow an unwritten rules,
that if at least four of the nine justices think we should accept the case for review, that's enough to require the full court to hear the case. This isn't written down anywhere, but that's the practice that we follow. a minority of the nine justices, a minority of four can say, yes, this is a case an issue of federal law that the Supreme Court should take in here and have four people
agree with that, then the case is put on our calendar. And two things happen. The parties to the case are given a briefing schedule and told to make their arguments in written form called briefs. And of course, they aren't brief at all. There are long written arguments that are printed up and they follow a certain format. And we all get copies of those briefs. The other side of the case, the delay, also files are written brief. And then the petitioner whose case we're hearing gets the file a final reply brief. And after all that is done. Then the lawyers for the parties to the case, come here to the court and they go in the courtroom, and they're given an hour for oral arguments a half an hour per side. We use that hour to ask questions of the lawyers about the
case, we've done a lot of homework before we go into the courtroom. To hear the oral argument. We read all those briefs. And we've thought about the issue that a federal law that's raised in the case. And we're ready to ask questions if we have them. Now, some of the justices are former law professors like my colleague here, Justice Briar, and they're used to asking good questions. And they still know how to do that. So the poor lawyers that come to the court have to answer a lot of hard questions from the bench. And then, after the cases are briefed and orally argued, the cases during the week in which we hear the oral arguments, the nine justices get together, and we sit around a conference table in our conference room, just the nine of us. We talk about the cases that were argued that week, we go around the table and the most senior justice speech
First, and then the most junior all around the table to the most junior. And each justice can speak as long as they wish and say how they think that particular case should be decided and explain their reasons for that. And based on that discussion we have around the table. We know whether that case that we're reviewing whether the judgment is going to be affirmed or reversed. And we have some idea of which justices are going to vote to a firm on which to reverse and we have some idea of their reasons. And based on that discussion, a writing assignment is then made to one of the justices in the majority on that particular case. The reason we have nine justices instead of eight is so we have an uneven number and we can always get at least five
constitute a holding of the court. We don't agree on the answer to all these cases. And that's good. We shouldn't. We're here because we have different backgrounds and different experiences and different viewpoints. And sometimes these issues will be decided by five people on one side and for disagreeing. That's all right. Many times we all agree, but other times, we have a difference of opinion among the court. And someone in the majority on the case is asked to write an opinion for the court. And that person then has to sit down and try to produce a written opinion that deals with the issues that are raised in the case and articulate some principle of federal law that people can understand that will resolve this case and others like it and we hope
will be written in such a way that at least four other justices on the court will join us so that we do have a holding of the court. And that opinion draft is circulated to all the justices. And they then start writing back. Maybe they want changes made, they say, Well, I could agree if you drop footnote five and add a paragraph here and change this and change that.
And sometimes that dissenting opinion is written and so then the writer for the majority has to go back and respond to the descent. But finally, all the writing is done. All nine justices have agreed to something and we're ready to announce the case from the bench. Now that's basically what we do here. Day in and day out. And I think it's time we opened it up for questions. What do you think? Yes. Alright. So now we've got one right here from
Student
Mount Vernon High School. Our constitution provides a Supreme Court justice be appointed by sitting presidents. With the approval of Congress. It follows that the President and the Congress have a vested interest in maintaining a court that is predisposed to finding favorably for them. How do you reconcile this party partisanship with the awesome job you have to uphold the Constitution?
Sandra Day O'Connor
Well, of course, the framers when they wrote the Constitution, first of all, this had to decide whether they wanted a Supreme Court and they decided they did, because they left and place the state court systems in the 13 original states. Now 50. And the framers of the Constitution, told Congress they did have the power to set up some federal courts to if it modded, and the very first Congress set up a system of federal courts. Now all these courts, state and federal have the power to decide issues of federal law, even constitutional law
It is inevitable that sometimes they're going to disagree. They're going to have conflicting holdings. So the framers said, We need one court at the top where people can go and we can get a final answer on issues and federal law. And that's why the Supreme Court was created. The number of justices is not set in the Constitution. It's up to Congress to say how many will have. And the constitution doesn't say the President will appoint the President will nominate a federal judge, including a justice of this cord and the confirmation. It must be with the advice and consent of the Senate, not the whole Congress, the Senate. And that's the process. And yes, that invokes some political considerations. Every president since George Washington has wanted to appoint justice as to this court if they have an opportunity to do so.
Who have views that the President thinks are compatible with the president zone? That's part of the process. And the break, if you will, is the vote of the Senate that can debate the nomination. Sometimes they're not approved. And most often they are.
But the big thing that guarantees the independence of the federal judges is that they are not appointed for a term of years. They can only be removed by impeachment. And the Constitution says they were appointed for good behavior. So as a practical matter, federal judges decide for themselves when it's time to retire. I think we have somebody from God couple of things. One thing is, this is a very important question I think you ask is what makes us independent? Because we were appointed by President and confirmed
Stephen Breyer
by Congress were politicians. And I agree with Justice O'Connor, once you put on that black robe, you are a different person. And politics is out. And that's the experience of a judge because we're appointed for life. And our salary in principle cannot be diminished. When you were in the student council down in San Antonio, do you have a student council there? Yeah, like it sometimes student judges, you might judge other disciplinary matters. Do they still have that? Whereas students sometimes will judge other students? Yeah. All right. Now you when you're in that job, have the courage to decide either for or against the student, when it would be very unpopular with your fellow students. I hope you would. And they help us along with that. To make sure our decisions do not reflect what is popular, but reflect what is right we have this base
Sometimes presidents are surprised. President Theodore Roosevelt appointed one of the greatest justices, Oliver Wendell Holmes, whom he thought would agree with him and Andy trust cases. Homes did not agree. Roosevelt said that judge homes I could carve more backbone out of the banana is pretty angry. Sometimes they're surprised, and it's because of that independence. But it's that independence that gives us the ability to decide what can be unpopular. San Antonio caught O'Connor High School, oh, Connor Connor High School. We've got it. Right. My question is, if the impeachment process goes to the Senate and Chief Justice Rehnquist has to leave to preside over that. How do you think your daily routines are going to be affected by that process?
Sandra Day O'Connor
Well, I think our daily routines won't be affected by it. But the Chief Justice is certainly would if he has to preside. For the most part, we have our oral arguments scheduled during the mornings of weeks in which we hear oral arguments. And it's my understanding, perhaps erroneous, but it's my understanding that should there be a necessity for the Senate to hear the impeachment if there is an impeachment that the Senate would not meet until one one o'clock each day until the matter is resolved. So presumably, a little work could take place in the mornings, even though there might be a proceeding in the afternoon. But that's all speculation as of now, because we don't at this point, know whether there will be any vote of impeachment at all.
Unknown Speaker
injustices right, some majorities decision the
Stephen Breyer
Justice who writes a decision for the majority is whom the Chief Justice selects when he's in the majority, or whomever the senior justice selects. If the chief is in the minority, they suppose they're five on one side. Well, they will assign the opinion, the person who assigns the opinion to write is either the chief or whoever is senior. If the chief is on the other side, in assigning the chief, make certain that everybody has the same number. As far as that's possible, it can't work out perfectly. So first, mechanically, he'll go and assign so that each person has one to write. And then as the cases build up over the year, they'll say so each person has to to write and then each person has three and so forth. But the actual decision is made by the Chief or the senior and it works out evenly over
Unknown Speaker
The Year in terms of numbers.
Unknown Speaker
My knowledge you never served as a trial lawyer. I wanted to know, are you at a disadvantage or advantage to your colleagues?
Stephen Breyer
I think not having served as a trial lawyer is a disadvantage. I think maybe if there are other things I can make up for by having other experience fine. But other things being equal. I would like to have had that experience to have served as a trial lawyer, but I didn't. One thing that is helpful to remember about the court is that we have justices here from all across the country, and from widely different experiences. Some have served as judges, and some have not. Some have been academics, teaching and law schools and some of not, some are practice law and some have
Sandra Day O'Connor
Not, that's probably a good thing, because I think each member of the court brings to bear on the job, a lifetime of experiences, whatever that might be. My own experiences were largely in state government. And I served in all three branches of my home state government in Arizona, and also worked for a time as a lawyer. So I had an experience perhaps that's not like some of my colleagues, but that's good. It's good for the court. I think I have people have broadly different backgrounds and experience.
Unknown Speaker
So we go to
Sandra Day O'Connor
Santa to O'Connor High School.
Unknown Speaker
Hello, Justice O'Connor and justice bar. And my question is, I'd like to know how you see the Supreme Court scroll and the 21st century.
Sandra Day O'Connor
Well, it's going to
Be very much like it's been in the 20th century, the court and courts in general are slow to change, we will perform the same functions that we have performed in this century, we will be deciding issues of federal law on which lower courts around conflict, what will change and what always changes
are the issues that we address. And the issues we address, broadly speaking, are the legal aspects of those very issues that are occupying the attention of the country at the time. Now, if Congress passes an environmental law, sooner or later, we're going to be hearing issues asking us to interpret conflicting or confusing or ambiguous provisions of that law. If
Recently involving the actions of an independent counsel issues that rose concerning who could be required to testify or not. And some of those issues came to this court. So what ever the nation's concerns will be in the next century. those concerns will be reflected at some level in legal disputes arising out of those issues. And this court will address maybe justice prior has more specific predictions. Yeah, I just add this. I agree with Justice O'Connor. They the think of as you've studied it, probably in all of your schools, think of some of the issues that have come here. Brown versus Board of Education, and what used to be a system of segregation in the south was set aside by this court.
Stephen Breyer
amendment cases you brought that up under the Bill of Rights have come to this court. Just in the last week we heard laws involving efforts to control gang behavior in the slums of Chicago. We hear cases involving people hurt through asbestos, or anything at all. What is most interesting, as you listen to Justice O'Connor, I think you saw that we could describe our daily work in a very few minutes. But the subject of what we're talking about when we talk together, the subject of what we're writing about is very interesting and important. And if there's one impression we all share, I hope you will see the courtroom and I hope you enjoy the O'Connor High School, come up here and look at our court room. Because as I sit there in the courtroom, and we all have the same impression. We think that it is absolutely a remarkable thing. That in this country
We have so many different groups of people, different races, different religions, different nationalities, people who think all kinds of different things. And believe me, there's sometimes very, very great disagreement that all those people have decided in this country, unlike some other countries to resolve their differences by coming to a courtroom and making arguments slowly and rationally, and appealing to reason, rather than fighting each other with guns and weapons. And that's a system that that constitution set up more than 200 years ago. And it's our experience every single day of our working lives, to see that happen in action. When we sit around that conference table, we disagree sometimes
I have never heard one justice, no matter how strongly he or she disagrees. I've never heard one justice ever say anything rude or sliding or insulting even subtly about some other justice. The discussion is calm and rational. And I often think, well, that's our system of deciding really important matters. Those people who wrote that in this document 200 years ago, were geniuses. And so I if you ask what will happen 200 years from now, I would say we hope, and we expect that that system will continue with other people in the next century, administering it, it'll be the same system. I think we have a question over
Sandra Day O'Connor
There.
Unknown Speaker
Good afternoon. My name is Alex.
Unknown Speaker
If you could have served on the court for any past decision, which one would it have been? And why? Also, would you have tried to effectuate an alternative route?
Sandra Day O'Connor
I don't quite know how to answer that. I've been here since 1981. And I've been privileged to participate in deciding literally hundreds of cases in that 18 year interval. And I don't look back at an earlier generation and say, Gee, I wish I'd been here then. Because the cases were asked to decide are almost always interesting and almost always significant. And they are very, very fascinating to work on even some obscure Income Tax Law issue. When you get into it can be interesting.
When we look back over the whole history of the court, we see quite a few very significant opinions that were written by this man behind me on the wall in that beautiful portrait of john Marshall. He was called the Great Chief Justice. And he served as Chief Justice, over 30 years here at the court. And he went on the court, not long after the nation was formed and the Constitution adopted, he was not the first chief. That was john J. And there were two others in between, but then john Marshall, and he was the author of some very fundamental decisions for this court, including that very famous decision of Marbury vs. Madison, do any of you have any of you heard about that case? All right. Why was that important? Could somebody tell me
Yes, I'll access. What
if that was the principal judicial review exactly the principle of judicial review? Because the constitution did not, in so many words expressly say that the courts have the power to review acts of the legislative branch for constitutionality. But that is what Marbury vs. Madison stands for. And that's what Chief Justice Marshall authored. And it was a very crucial key principle for the development of the court system ever since. And you may have some other thoughts on African cases. I agree that if if you of course, that's awfully interesting question.
Stephen Breyer
And only after that, do you come into this century, where people begin to really develop the habit of obeying the law? I think the most important case in that respect was brown versus board. Yes, because there you have an entire section of the country, which you don't know you're not old enough that I can remember. And so can Justice O'Connor. We can remember a time when actually the law required segregation of the races, and a whole system had been set up in the south primarily, but there were plenty of bad effects in the north to
So, of course, I'd say, Would you like to be involved? They have helped with that. Sure, sure. But I mean, it's I'm in this world and and that's that's his. I think another important thing that that keys them to that is for us all to remember that this Court has no enforcement power. We don't have any troops that we can call out to enforce our judgments. What do we have, we have what's called the power of the pan, the power of persuasion. We have to write opinions in cases that are sufficiently well explained and persuasive.
Sandra Day O'Connor
people all across the country will decide, yes, they should and will follow what the court says. Now, this is not inevitable. And we are lucky that our country has been in existence long enough and that our climate has grown up in the country, that people will follow what the court says and that presidents who don't have to enforce our judgments, nevertheless, will do so. I doubt that President Eisenhower was very happy to have to make a decision to send troops to Little Rock, Arkansas to enforce the judgment of this court. But the impressive thing is that he did. And that from President on down, people tend to follow
Student
Question. Could we hear it from O'Connor high school? Good morning, just as Brian Justice O'Connor, you mentioned the concept of judicial review. And I was wondering if Marshall hadn't judged in that landmark case? Do you think that that concept would have been figured out or found by other later justices on the court?
Unknown Speaker
Or that's that's, that's interesting what what Holmes said, is that he said that that said the principle that Marshall had was was a principle that the supreme court
Stephen Breyer
could say that an act of Congress was contrary to the Constitution of the United States, and therefore void. Now other countries have developed legal systems that don't have that principle in it. And so I think the answer is it
was not inevitable, and we would be a different nation without it. Home said there is a different principle, but it's more important in a sense. And that was that the court have the power to say that a law passed by a state legislature was contrary to the Federal Constitution, because he said without that power, the states wouldn't follow the federal law. And if they didn't follow the federal law, it would be impossible
to have a federal country, ie one country, and that was tested out through what john C. Calhoun, I believe you may studied that called the doctrine of nullification. Remember reading about that, and that's what we really fought a civil war over. And and that I think, is the key issue for being one country that I think was inevitable if we wanted to remain a single nation and inevitable also because there is a
Sandra Day O'Connor
provision in the federal constitution that says the laws of the United States are the supreme law of the land. So there is a textual basis for the court to look at a state law and say it is inconsistent with the Constitution. There is no text in the constitution that makes it inevitable that the court can look at a law passed by the Congress of the United States and say, it is not constitutional.
Student
Either. And I was wondering, do either of you believe that once a rule common law is established that it should be binding for all time? Oh, no, we change our mind sometimes. Now. This is an interesting point. And I'm glad you you made it, because
Sandra Day O'Connor
Now the constitution could be amended, and Congress could initiate an amendment to overcome some Supreme Court holding of the meaning of the Constitution. But it can't just pass a law. So who can change? If we don't amend the Constitution, this court can and Brown versus Board of Education is a good example, where this same court in an earlier decision in plus the versus ferguson had said,
if the state provides separate but equal facilities for blacks, that is OK, that meets the equal protection requirement. The justices in 1954 when Brown versus Board of Education
came along, said that was wrong. The court was wrong, and we no longer will follow that. And it's very important to know that this court can change its mind. Now, we're not as apt to do it. If we're interpreting a statute passed by Congress. Why? Any ideas? We don't we're not as apt