Diane Rehm
Thanks for joining us, I'm Diane Rehm. when ronald reagan nominated the first woman to the Supreme Court 25 years ago, few imagine that Sandra Day O'Connor would emerge as its most influential member since retiring in January. Justice O'Connor is spoken out forcefully and defensive the courts him as huge digital decisions may anger politicians, but retaliatory threats against judges threatened democracy itself. Joining me in this studio to talk about the role of the courts and her service on the nation's highest court Justice Sandra Day O'Connor, and throughout the hour, we'll take your calls your comments, questions 800 for 338850 Send your email to Dr. show@wamu.org. Welcome to you just as how con are so good to see you.
Sandra Day O'Connor
Thank you, Diane. I'm glad to be here and to see you Thank you.
Diane Rehm
Tell me how concerned you are about the independent The judicial branch of our government,
Sandra Day O'Connor
I am concerned. I've lived a pretty long time now. And in my lifetime, I don't believe I've seen as many complaints by members of Congress, by state legislators, by other officials, and even by the public, about judges. were hearing statements rather frequently, I think, complaining that judges are activists, godless, secular humanists trying to impose some new regime on the nation. And I just don't see it that way. I understand that. Sometimes judges have to resolve very controversial issues. Sometimes in cases where the good arguments can be made on either side of the issue. And it's understandable that sometimes people disagree about the right answer. But efforts to retaliate against judges for their judicial decision making worries me very much. Because the basis of our constitutional structure that the framers designed envision three independent branches of government, the executive headed by the president, the legislative branch, and the judicial branch, the framers went to great effort to try to provide independence for federal judges anyway. And states have followed the same pattern in the design of state governments.
Diane Rehm
You were I gather especially concerned about stay pence made by former House Majority Leader, Tom DeLay and republican senator john corn and Why were these statements particularly disturbing to you?
Sandra Day O'Connor
I don't single out any particular individuals as the source of my concern. The complaints that we hear a rather broad based recent polls indicate that well over 50% of the public today thinks judges are activists and in need of direction. That's disturbing. very disturbing. And it's reflected in a whole variety of proposed legislation and the Congress and proposed legislation at the state level
Diane Rehm
said yes,
Sandra Day O'Connor
we are national level. There are resolutions to, I think in both houses to establish and an independent body to investigate judges and to report in secret, if need be to the Congress to investigate sitting judges and report on band stations that they had more than anything. Yes, it could be with regard to specific decisions or to conduct if the judge in any way. This is certainly a new idea. There are suggestions by some in Congress that court budget should be reduced as a means of effect, punishing judges for actions found unfortunate by members of Congress, there are proposals in Congress to impeach any federal judge, who would cite a foreign judgment in a in a written opinion. I mean, these are rather remarkable things. There are proposals to strip federal courts have jurisdiction over whole categories of cases. Now, I think the public needs to be aware of the concerns. And as I said at the outset, I'm sure that there's room for disagreement with individual decisions and judgments that courts make if they're made by lower courts by Federal Courts of Appeal or district courts. We have an appellate procedure designed to enable higher courts to correct mistakes and record of course, we also have the system of petitions to the Supreme Court of the United States from lower court decisions to enable the Supreme Court to take action if need be, to set aside some erroneous judgment. But the complaints go beyond that. There there was considerable concern in Congress with the failure or refusal if you will have federal courts to change the holding of the courts in Florida. In the Terry shy vote case, if you remember that. The unfortunate situation of the young woman who was kept on life support for so long. There are there is unhappy In by many people over decisions that the Supreme Court itself is made the decision that found unconstitutional the imposition of the death penalty on people who are under 18 when the murder was committed that was strongly and criticized size by some and there's room for disagreement, but is it appropriate to retaliate against judges for things like that, or the 10 commandments, posting cases where there were two cases one of them involving a monument in Texas on the grounds of the State Capitol, which the Supreme Court upheld by a five to four decision and then the posting in within a courthouse. In a more confined setting, which the court overturned, there's room for disagreement certainly on these, but is it grounds for disciplinary action? I don't think that's how the framers of the Constitution envisioned the role of the courts. In fact, James Madison, we think of as the father of our Constitution, he did not have the thinking and drafting that went into our Constitution. And he said that an independent judiciary is an impenetrable bulwark against every assumption of power in the legislative or the executive. Now that's putting it a little strongly. But what I think Madison was trying to express is that the courts are important guardians of the guaranteed freedoms in our Constitution.
Let's look back, for instance, at Brown versus Board of Education in the 1950s, where this Supreme Court overturned a long standing precedent that said it was all right for governments, states, other governmental agencies do discriminate against people of the black race on the basis of their race, in providing public services, so long as the services were equally provided to whites and blacks, which left room for segregated schools, segregated buses. And so now the Supreme Court, as you know, overturned that in Brown versus Board of Education, and said the Equal Protection Clause does not permit that that was a change in doctrine. There were many areas of our country That found that outrageous indeed, did not want to follow it. We had a governor of Arkansas who went to the school and said no, you will not bring black children into this school. It took President Eisenhower sending federal troops to Little Rock, Arkansas, to enable those black children to enter the formerly all white public school. That was a very dramatic confrontation in a country. It took a number of years before people in this country came to accept the notion that we don't discriminate on the basis of race in this country. I think today, no one could successfully run for public office on a platform of segregation. It's now accepted. But it wasn't the time. Now. Would it have been right for legislators to take retaliatory action against the members of the court? who voted for that?
Diane Rehm
retired Supreme Court Justice Sandra Day O'Connor. And when we come back, we'll talk more we'll take your calls 800 for 338850 Send your email to Dr. show@wamu.org.
Welcome back former Justice Sandra Day O'Connor, who took her resignation from the Supreme Court in January is here in the studio with May and we will shortly take your calls. I'll ask you to be brief in your comments. I know we all have many callers joining us. You've used the word activist judges.
Sandra Day O'Connor
It's not my word, but I've heard. Exactly. And
Diane Rehm
I would like to understand your definition of the word activist. How do you interpret what those criticisms actually
Sandra Day O'Connor
I don't know what the term means. I take it it primarily means when some judges criticized as being activists that that the judge has handed down opinion with which the speaker disagrees. I don't know how to interpret it.
Diane Rehm
How long have you have these concerns?
Sandra Day O'Connor
They've been growing They've been growing with the increased number of criticisms that have evolved. Now, I remember many years ago in the early 50s, when Earl Warren was Chief Justice of the Supreme Court, and that was in the years when the Brown versus Board of Education decision was handed down. And in the southwest where I lived, there was a push for impeaching or Oban. And I used to see billboards along the highway.
Unknown Speaker
I remember. I remember.
Sandra Day O'Connor
So that was another time of criticism. We can look back also at Franklin Roosevelt when he was president. Some of his economic proposals that he had he persuaded Congress to adopt to try to get the country out of its depression where the then found unconstitutional by the Supreme Court. It may be President Roosevelt very angry, he was very upset. He thought his whole program for helping the nation was being dismantled by the Supreme Court. He wanted to do something about it. And he proposed the court packing plan the appointment of an additional justice, every time one turn 70 and didn't retire. And that came very close to passing. You know, at the end of the day, it didn't. They talk about the change that save 911 of the justices on a case involving one of Roosevelt's legislative plans, voted to uphold it and that changed the holding of the court.
Diane Rehm
at same time, I infer that you are saying that these attacks, the his attempts to label certain judges in certain ways, the attempts to impeach even the death threats have intensified.
Sandra Day O'Connor
It think they have. I see it at a new level today. And it worries me. judicial independence doesn't happen all by itself. It's very hard to create. I think it was very much in the minds and understanding the framers when they wrote our Constitution. In the Supreme Court building itself, we have a larger than life statue of john Marshall, the great Chief Justice, who spent 35 years trying to create a culture where the political branches would by and large acquiesce in the interpretation of law by the judicial branch. Now, the other branches of government do not always acquiesce and certainly don't always agree, which I understand. But by and large, it's been at the root of our notions of the rule of law. Our country has tried to promote the concept of the rule of law around the world, in hopes that it will, at the end of the day create a more peaceful world after the breakup of the Soviet Union, as you know, some 26 new nation states emerged. They wrote constitutions, they wrote laws, they set up systems of government in these new nation states, to enable them to function in a free market environment. They used advice from around the world in creating these One of the things they were most interested in was the creation of independent judiciary. Under this Soviet regime, they had something that we like to call telephone justice. If a case came before a judge in the former Soviet Union, and if the government of the Soviet Union thought the result should be a certain way, the judge would be notified in some fashion, that the decision should be x. And if the judge didn't do it, that judge would soon find himself out of a job or losing his apartment or having some other sanction imposed. That was the so called telephone justice system. So what was very important to these new nation states was to create a system of judicial branch that was independent and could enforce the provisions of their newly drafted constitutions.
Diane Rehm
Nina Totenberg been PR was in the audience when you made your March speech at Georgetown University. She reported that you linked the erosion of judicial independence to dictatorships.
Sandra Day O'Connor
I did not expressly do that. But what I did do was to note that there were instances in recent years in the 90s when we could look around the world and see examples of attacks on judicial independence for instance. Suppose we think about the situation in Russia. When the Chief Justice is Pat cap was killed by bodyguards of yeltsin, who was then head of Russia as a means of punishing the chief justice. I pointed out that I pointed out that in one country, the executive branch of the government in Bulgaria, cut off the water to the Supreme Court building in an effort to prevent or to punish the the justices from making anti presidential statements. I mean, these are examples of the Direct Action Against judges for specific decisions now, they happened in countries that are not governed as rz is, but they are most unfortunate and I don't think we should emulate those examples.
Diane Rehm
I'm quoting here now from Nina Totenberg report. And again, this is Nina Totenberg reporting on your speech. She apparently said. I said O'Connor am against judicial reforms driven by nakedly partnerships and reasoning, pointing to the experience of developing countries, former communist countries, where interference with an independent judiciary has allowed dictatorship to flourish. O'Connor said we must be ever vigilant against those who would strong arm the judiciary into adapting their preferred policies. It takes a lot of the generation before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginning Exactly. Do you see the beginnings upon us?
Sandra Day O'Connor
I see efforts made at the legislative level, both at the state level and the national level to take some kind of retaliatory action against judges for judicial decision making. That troubles me because I have cited examples from other countries for that as occurred and where I don't think We want to start down that road in this country. I think it's most unfortunate. And there are there's a proposal to amend the Constitution in the State of South Dakota, to remove judicial immunity all together
Diane Rehm
and to allow unity from
Sandra Day O'Connor
from lawsuits and from criminal punishment, I say, to open it up to lawsuits by unhappy litigants against judges against jurors, who might have ruled unfavorably to remove immunity from jurors who serve and judges who serve. This is a very serious proposal. It's called jail for judges. I'm told by people who live in South Korea Kota, that there is rather substantial support for it. Now is that the kind of system of governance that we bought in this country? We have some serious issues here. And if there's that much public unhappiness, then we need to start talking about it.
Diane Rehm
Do you believe the American people are ready to talk about this?
Sandra Day O'Connor
Well, I hope so because if you believe the recent polls, over 50% of the people are very concerned about judicial activism and about actions of judges.
Diane Rehm
Alright, we're going to open the phones in just a moment. We'll bring those phone calls right here into the studio 800-433-8850 send a short email to the Our show@wamu.org Let's go first to Raleigh, North Carolina. Good morning, Steve, you're on the air. Hi, thank you for taking
Unknown Speaker
my call.
Diane Rehm
You're welcome.
Unknown Speaker
Justice O'Connor. I was very gratified to hear your definition of judicial activism a few minutes ago, because that's been my perception years. Unfortunately, though, it is gained so much traction that there have been times when I've added my own perceptions. So I'm really happy to hear you say it. But I wonder why in the face of it, of this kind of separates why the Supreme Court doesn't maintain a higher profile, more media access, hearing, more interviews, just making yourself available as a way of explaining what you're doing and helping the public understand.
Diane Rehm
It's very interesting.
Sandra Day O'Connor
Judges charges historically and traditionally have felt That they are in the worst position to defend themselves from direct accusations or claims by unhappy citizens. Judges tend to think that they are required if they write opinions to explain their reasons for them in the written opinions that they issue. Certainly that's true at the Supreme Court, where the justices go to great effort to try to explain exactly their reasoning in a given case, either for the majority or for the dissent. And so it really falls to others to jump into the fray in terms of articulating a defense
Diane Rehm
at 26. Before the hour, you're listening to the Diane regime show. And let's go now to Timothy, who's in Indianapolis, good morning. you're on the air.
Unknown Speaker
Good morning. Thank you very much for taking my call. I just want to say we often hear references from presidents members of Congress voters and so many others to a particular justices judicial philosophy, but I've concluded that the discussion is so frequently one dimensional and wrongly implies that justices are intransigent, inflexible and incapable of deciding cases on their merits because of quote, unquote, judicial philosophy. And I think a more careful review of what our courts truly accomplish. Our will prove it judges don't rubber stamp opinions or review cases with a cookie cutter and just want to get justice O'Connor's thoughts on that now, listen to my answer off the air.
Diane Rehm
Thank you to him as he for your call.
Sandra Day O'Connor
Thank you. I agree with you. I don't think that we can broadly say that judges have such preconceived ideas that they will no longer listen to reason and decide cases on the basis of their merits. And that reasoning. I think, in fact, having served 25 years on the court, that the justice is there are open to valid, legitimate arguments on either side of a case. That isn't to say that a given judge doesn't articulate a position on some issue and then feel bound by it you do. As you make decisions as you go along. On the Supreme Court. I've always said it's a little like walking on a freshly poured concrete sidewalk. You leave footprints that hard and so if if I took a position as a justice on the meaning of the Fourth Amendment and gave a certain interpretation to my understanding of that amendment. I'm not likely to change my mind thereafter, as easily, because I've already gone through that process, but on questions where there is no binding precedent, and where the court is considering an issue that could be resolved one of two ways. I don't think it's a cookie cutter form of justice. I think they're open to legitimate arguments.
Diane Rehm
Do you believe that you are tired at the right time?
Sandra Day O'Connor
There's no right time. In my case, I was concerned about caring for a husband of many years who has some medical problems and needed a great deal more of my attention. And I wasn't timing up for anything else than that. Although I know many of my predecessors have expressed the view that you don't want to stay so long that you're no longer able to do the job as well as when you started.
Diane Rehm
Well, I doubt that there are any who would question that you could have gone on and continue to do the job. Well. We'll be back in just a moment. Stay with us.
Unknown Speaker
national broadcast of the Diane Rehm show is made possible in part by American University. Additional support for NPR comes from the Pew Charitable Trusts serving the public interest through information policy solutions and support for civic life online at few trusts.org. And from the William and Flora Hewlett Foundation, making grants both to promote international understanding and address the root causes of global poverty online@hewlett.org this is NPR National Public Radio.
Unknown Speaker
The next fresh air singer songwriter and actor Kris Kristofferson. He just turned 70 last week he received the Johnny Mercer award from the Songwriters Hall of Fame. He has a new CD, and there's a new tribute album. I'm Terry Gross. Join us for the next fresh air.
Diane Rehm
And we're back with retired Supreme Court Justice Sandra Day O'Connor will go back to the phones to Broken Arrow, Oklahoma and Tony Run the air.
Unknown Speaker
Well, I really hate Sandra Day O'Connor retired, but I really understand for her family, but I feel like she balances the cord out. And I feel like we should use a little more chance when we pick judges out for fair and balanced, not just theology. And I think that if you say you're a Christian, then you should be walking the walk instead of talking the talk and I don't see anyone walking the walk. And I really hate shoes return, but I really understand it. So I think, like I said, balanced our country out, even though some of the decisions might not have been what I would have thought were correct. And a lot of people don't pay attention, but I was paying attention.
Diane Rehm
Thank you, Tony. I think they're probably a lot of people Justice O'Connor. Who feel sad.
Sandra Day O'Connor
I feel sad too. But it that time came and that's the decision that comes sooner or later anyway, I, I have a wonderful poem, I should have brought it. But it describes how you may think you're indispensable. But it's a little like putting your hand in a bucket of water and stirring it around. And it makes a big splash at the time. But when you pull your hand out, the water settles down, and it's absolutely undisturbed. So I hope that in the long run will be the effect of
Diane Rehm
my departure. I think some people perhaps, Tony included, are concerned about the current court. Here's an email speaking to that issue from Donna in Miami, who says would you be good enough to speak to the very recent Supreme Court ruling allowing Evidence obtained by a police search without knocking these frightens me and appears to violate our constitutional guarantee against unreasonable search and seizure.
Sandra Day O'Connor
There was a strong dissent written in that very stress. And I think probably would express the concerns of the color pretty well. Should the color want to read it? I'm not going to comment more. It's very recent. And it's not my role to criticize the court on which I served. I'm not going to do that.
Diane Rehm
Here's an email from wrath in Rockford, Illinois, who says here I sit as a young man planning on beginning law school in the coming year. I am struck by your comments. My great desire to serve our nation's court system is indeed deepened. But I also feel despair and doubt in the face of your concern. What advice or comments would you offer a young person such as myself, for whom law and the judiciary will hopefully be a lifelong concern and cause? How best can a lawyer or judge retain that sense of independence and the In your opinion, reverse the current trend toward domination of the judicial branch? Finally, he says, I thank you for your response, and for your lifetime of service toward our nation.
Sandra Day O'Connor
I'm glad you asked the question. Because you as a color as a citizen, as a law student, and I hope someday as a lawyer in your community, can make a huge difference in this world. Question by speaking out yourself on this matter, and telling your members of Congress and your state legislators that preservation of judicial independence is absolutely essential if we're going to preserve our democratic system of government, as the framers conceived of it, and your participation that way as a citizen, and that of others who share your concerns, and my concerns can make a real difference. Because I think legislators ultimately respond to voices from the public and their constituents.
Diane Rehm
You know, I wonder, I hear such frustration coming from callers from emails. Do you believe that members of Congress truly listen carefully Two constituents?
Sandra Day O'Connor
I think they do, particularly if there are multiple voices saying the same thing. Do they listen to one lone voice in the wilderness? I hope so. But maybe not. But I know that they listen to multiple voices who express concern.
Diane Rehm
The court has announced it's going to hear two challenges to race balancing policies it schools. You wrote the majority opinion on the last such case. Do you see that as being threatened?
Sandra Day O'Connor
Not directly because the issues posed don't ask the court overturn the greater decision. This is a new issue of balancing school populations as I understand it, within a school that strict, so it poses a somewhat different question than admission to law school, which is what we were looking at.
Diane Rehm
All right, let's go to Nantucket, Massachusetts. Hello, Steve, you're on the air.
Unknown Speaker
Thank you for taking my call. Certainly. Justice O'Connor, you had mentioned earlier, the framers of the Constitution, how much you value their opinion? I probably fall in that 50%. That's a little upset and would think some judges are activists, when you cite the Constitution in framers. How can you then not be upset with a judge who would cite foreign law in a case decision?
Sandra Day O'Connor
Well, let me tell you how. There I am aware of no instance in which a member of the Supreme Court of the United States has ever cited a foreign judgment as binding authority on us or our court industry. Citing some issue of constitutional law here, nevertheless, in reaching decisions on issues that come up in other countries as well, under similar provisions, is it totally improper to look around and see what other people do? I don't think so. It's not uncommon for justices or judges to cite law review articles or text writers taking a position on a certain issue and saying, Well, that sounds reasonable. Let's look at what so and so had to say, Why isn't it all right to look at what some court in another respective jurisdiction has to say on precisely the question you're addressing? It's not cited as binding? Of course it isn't. But is it wrong to consider the thoughts of others in resolving similar issues.
Diane Rehm
What do you believe is behind that question?
Sandra Day O'Connor
Well, I'm not sure. But there's been considerable unhappiness expressed, including by Justice Scalia, on our court who is very anxious that we not cite foreign judgments for any specific authority. And I think we don't I'm aware of no instance when anyone has said, oh, there's this judgment from the European Court of Human Rights that somehow should bind us. We don't take that position at all. But the most recent example of a citation for information only, I guess, occurred in the juvenile death penalty case, where a majority of the court found that the Eighth Amendment did should be in interpreted to prohibit as cruel and unusual, putting to death, someone under a death penalty for murder if that person was under the age of 18 at the time it was committed. Now, I descended in the case because I had written in an earlier decision in the 1980s saying that I thought the constitution did prohibit such for persons under 16. But I didn't think that it prohibited it between 16 and 18. I didn't change my mind in the recent decision. But the court did point out the majority pointed out that only two nations in the world still impose the death penalty on or could impose the death penalty on people who are under 18 When it was committed, and those two nations are the United States in Somali, now Somalia doesn't have an operative government. So that really just left one. Was it wrong for a member of the court to point that out? I think probably not.
Diane Rehm
That said, Take a caller here in Washington, DC. Good morning, Troy, you're on the air.
Unknown Speaker
Good morning. Hello, how are you? Fine. Thank you. Well, thanks for the time today. I just wanted to point out a couple things that I've been thinking of, you know, within the last couple years. One thing I think that is misunderstood when someone says activists judge my perspective, an activist judges, somebody who would seek out to change what we were before. And I think and I feel that in our Constitution, there's so many sightings of God from a Christian perspective. Now, I realized that our country has to be free from separation of church and state, you know from coming together. And I understand that. And I think that's basically understood, but our whole law system is is made and created based upon principles from the Bible, and specifically from the law. Old Testament. Now, when you seek to pull those away, I think that's your main problem right now, what you're dealing with is people angry, because you're seeking to change what America is. And there was a man in history. I love history. His name was Dr. Bill. And he went to America and he saw American he said, he said this. I remember in the in the books that I had read, he said, America is great because she's good. And he said, he went into the pulpits of America, white, black, you name it. And he said, when America ceases to be good, she will cease to be great. And I think Mrs. Connor very respectfully when when you say people angry Activists adjust. That's the route here and politically and and the whole ruckus is over that issue of stripping America of what we are.
Sandra Day O'Connor
It could be that some critics of the court are unhappy with some decisions dealing with interpreting the religion clauses of the Constitution. Of course, a justice coming to the court is bound by over 200 years of precedents. And it's pretty clear that the court through the years has said that those religion clauses do contemplate a separation of church and state and over the years that has served the court and the nation rather well. We have many acknowledgments of God in our daily lives as we go forward in government, we open legislative sessions in Congress with a prayer. We have In God we trust on coins and currency. We have many expressions of God in our daily lives and those haven't been removed, that hasn't been changed. There was a case that came from the Ninth Circuit dealing with the Pledge of Allegiance. But the Supreme Court never ruled that the words under God were unconstitutional. So I don't see any massive stripping of references to God, coming from our nation's highest score
Diane Rehm
at six minutes before the hour. You're listening to Diane Greene show. And finally to Bedford, Texas, Stephen, you're on the air.
Unknown Speaker
Thank you for taking my call. Sure. I'm just a sucker. I have the highest respect for you as a justice regardless of political decisions. I think that this animosity toward the supreme court now is, in part, a direct result of politicians like Tom DeLay who have said terrible things about decisions that the judges have made. What do you think about comments like that? And in particular, and culture, who said that someone should put grab poison and just to Stevens food, which I thought was a horrific statement.
Sandra Day O'Connor
I think it's most unfortunate when there are calls for injury or attacks on individual judges. That's not what our nation stands for. And I don't see how any reasonable citizen could support that kind of thing.
Diane Rehm
Last question for you just so counter. How would you have us enter this debate as actively as possible?
Sandra Day O'Connor
I hope that citizens will consider the concerns we talked about today, concerning the courts and will recognize that without independent judges to enforce the provisions of our bill of rights, for example, we won't have the guarantees that the framers put into the constitution to protect us. And so I think citizens need to express themselves on the question and to speak out in favor of preservation of the notion of judicial immunity from retaliation for judi