teacherken's musings on everything

Last evening (Friday, May 20), my wife and I were invited to attend an awards ceremony at the Smithsonian honoring Justice Sandra Day O'Connor.  The prize is the Benjamin Franklin Creativity Laureate Prize, first awarded three years ago to Yo-Yo Ma.  It is a joint collaboration between the Smithsonian Associates and the Creativity Foundation, founded by B(enjamin) Franklin Kahn.  Frank, given his last name, has had a life-long interested in Franklin, which has culminated in the Creativity Foundation.

Below the fold I will give a brief explanation of the prize and the wards ceremony.  I will then offer my notes from the public session during which Justice O'Connor was interviewed by Andrea Mitchell of NBC News, after which she took some questions from the audience, the last of which I asked.   I will also include  some observations, including of her interactions afterwards at the reception.  I think some readers may be able to learn some interesting things about the most influential Justice(although she denies that part) of the current Court.

THE FOLD

Benjamin Franklin had regularly met with a group of his gifted friends in what he called his "Junto."  He used these people as a springboard for ideas, for founding of the many institutions with which he was associated, and, as the program said last night, for becoming the honest broker of creative ideas not aligned with or encumbered by religion, politics, or royal affiliation.He also had a codicil added to his will in which he said

I wish to be useful even after my death, if possible, in forming and advancing other young men who may be serviceable to their country.

 

This part of his will had lead to the establishment of the award of Franklin medals to outstanding graduates of Boston Latin,. which Franklin had briefly attended before leaving prematurely to embark on his work career.

Frank Kahn made a fortune in real estate. He was the main inventor of the Real Estate Investment Trust.   In 2001 he decided to take his life-long interest in Franklin and emulate his namesake in establishing a series of awards.  These include awards to younger people at the beginning of their careers, and the Laureate award whose ceremony I attended last night.  As a first step he "reinstituted" the Junto on Franklin 294th birthday, including several of his acquaintances who are nationally and internationally recognized.  The current Junto includes such worthies as Dudley Herschbach, 1986 Nobel Laureate in Chemistry, Lawrence Klein, 1980 Nobel Laureate in Economics, Laurel Ulrich, 1991 Pulitzer winner in History, Gerald Holton, Jefferson Lecturer Prize in 1981, and his daughter Laurie Leavitt-Kahn. Laurie, who was my wife's roommate as a graduate student in Oxford, is an award-winning documentary filmmaker.  Her  film of "The MIdwife's Tale" won the 1998 Emmy for non-fiction, and he recent film on "Tupperware" just won a Peabody.  As noted  before, the first award was to Yo-Yo Ma in 2002.  The next award was to Daniel Patrick Moynihan, but unfortunately he passed away before the ceremony could be held.  Last year Eric Kandel, 2000 Nobel Laureate in Physiology or Medicine, was the recipient.

One brief disclosure before continuing   -- both my wife and I have consulted to this project.  My wife has helped with the editing of Creativity Foundation materials,  and I served as a consultant to the the portion of the project that has included awards to high school aged students, parallel to the original prize Franklin himself established.

Now to last night.  The form of the ceremony is a brief explanation of the prize, which was made by Junto member James W. Pruett, who is retired as chair of the Music department of the University of North Carolina and as had of the Music Division of the Library of Congress.  Justice O'Connor then received her award, took a seat on the stage, and was interviewed for about 45 minutes by Andrea Mitchell.   She then took question from the audience for about 30 minutes more.  Finally, there was an informal reception, at which it was possible to speak with the Justice.

The early questions from Mitchell were largely about her background and how it shaped an influenced her.  I did not keep notes on that, because I heard little that was not already available through a number of sources.  Among her first remarks about the law was a rather pointed reaction to the idea that judges should be criticized for "making law" rather than interpreting it.  She notes that the U.S., following the British model, is largely a system of Common law.  Under this system it is the job of appellate judges to issue ruling which then serve as precedents, these precedents functioning as law.  This was clearly a part of the legal practice in the colonies and the states at the time the Constitution was writing.

Of the Constitution itself, she then noted that it provides a setting and a structure for government, with its clear separation of powers and the ability of each branch to have some check over the power of the other two. She also noted that the Founders had had some experience with colonial legislatures and governors attemtping to control the judiciary by things such as cutting their pay. 

When asked about her judicial philosophy, she answered indirectly"

I just take one case at a time.  I didn't come to the Court with an overarching goal except to the best I could with each case.

 She when on to say that judges cannot lead the country, or set an agenda, which is what she did as a legislator, but rather must take the cases as they come.  She also noted the US Supreme Court does not decide facts, but must take the facts as established by the trial court.  Here she made a distinction between a civil law system such as is found in most of the European Union and the British and American tradition of Common Law.  In a civil law system there is usually a separate Constitutional Court which may even be asked to rule on hypotheticals.  The U S Supreme Court can only rule on an actual case for which a record has been established at trial (except of course for those few situations for which the Constitution provides for original jurisdiction).

O'Connor went on to note that judges in the U.S. tend to be generalists, as most of our courts deal with a broad range of issues.   This was in response to a question about some of the cases on newer technology or in highly technical issues.  O'Connor noted that there are areas in which the Justices are not experts, these including things such as income tax law, new technology, and patent law.  That often requires the justices to do a great deal of reading to get up to speed on the issues before them.

She was asked about the recent complaints about the Court looking at international precedents.  She described the furor as "much ado about nothing."  She pointed out that there is an international treaty to which the U S is a party that addresses issues of civil liability in air travel.  She noted that of course the Court would want to look at what courts in other nations have said about it.  She gave the further example of laws passed here about safety requirements for passenger ships.  But what about a ship from another nation, licensed under the safety regulations of that nation, that comes to the U.S.  When do their laws apply and when do ours, and why?  How does this issue fit with international treaties and the body of international and admiralty law?  

The Justice was then asked how she felt about the growing criticism of the judiciary.  She responded that there had never been a period without some criticism of the Court.  Courts decide tough questions, tough issues, and a good case can be made for either side.  Thus the side that loses will often be quite unhappy.   She said that the current level of criticism may be more intense than we remember, but that the Court would get through it.

O'Connor said that there was another way in which our legal system is somewhat unique.  Our Court acts upon both oral arguments and written briefs.  Most other nations rely upon one or the other, but not both.  The British tradition is to allow almost unlimited oral argument, but to make little use of written argument.  The other nations in the European Union rely almost exclusively on the written arguments.  She thinks we are well served, as are the justices, by having both before them, as well as the written record of the lower Court.

Another difference in our system is the willingness of the Supreme Court (and many other appellate courts) to accept amicus briefs.  She thinks this is a good thing, and that while it increases the reading load for the Justices, it enables them to act on a more complete picture of the implications of the case.  If people want to see how up to speed the justices are, they ought to come to oral arguments.  NOTE:  based on the one case I saw argued (by  friend), I very much agree.  For her one key goal of oral arguments is to get a better sense of the the rule of law being sought will play out in the future.

The Justice noted that 35-40% of their decisions are unanimous.  She thought that was a pretty good record, considering that they tend to take the cases that were most divisive in the lower courts, such as those with different results in different circuits.

When asked about the most grateful aspect of being a justice, she listed several things.  First, it is just the privilege of being able to work on some of the most challenging legal issues in the country.  Sometimes the law is like a big puzzle, and when you work on it enough you have an "aha" moment which enables you to solved that puzzle. Beyond that what is satisfying is when you write an opinion whose support is unanimous.   But most of all, what is truly satisfying is when you write what is supposed to be a dissenting opinion and it persuades enough of your colleagues that it becomes the majority opinion.  In general, she noted

it is just work worth doing

which given how important work is to all of us is very satisfying.

The question and answer session followed.  The first question was an attempt to challenge -- I know the questioner, a Ph. D relative of Mr. Kahn.  Given that the Constitution was created to meet the needs and problem of the people of the 1780's, and that today's problems and society are very different, isn't it a disservice to `sanctify" the Constitution?  O'Connor responded that it was not, because the Constitution provides a structure.  The Framers made it tough for any one branch to run to excess over the other two branches, and that this process serves the nation well.  

Mind you they made it difficult . . . . maybe that's a good thing.

 She noted the the Constitution is largely a majoritarian document, but the the Bill of Rights  provides the anti-majoritarian protections our nation needs, and reminded the audience that without the commitment to a Bill of Rights the original Constitution would not have been ratified.

Another questioner noted that when the Constitution was established, the nation was mainly on the East Coast, and thus Washington was near the center of the nation.  Shouldn't the Court perhaps sit more in the center of the nation, to have a more complete sense of what impact the ruling would have.  O'Connor dismissed this with some gentle humor that

I'd love to have it sit in Phoenix!

In response to another question  she noted that there are four courtyards at the Court and in each courtyard there is a statue of a tortoise.  Of all the symbolism ne can find at the Court she thought this was perhaps the most appropriate, because the Court should move slowly before making radical changes.  

When asked her opinion on the current dispute on the filibuster, she sid that she was not going to share her personal opinion, that it is up to the Senate to make its own rules. When Andrea Mitchell tried to provide her by saying "until the Court decides to get involved" O'Connor demurred.

The statement I found most troubling was in response to a question if we could restrain the litiginousness of our society without restricting the rights of our citizens.   O'Connor noted that in the UK the loser in civil litigation has to pay the lawyer`s fees of the winner, and wondered if the 50 states might not want to experiment with something like this to see what the effect was.  She did acknowledge that the rights of those with no money to able to access the courts needed to be protected, and pointed out the ability of those suing to obtain lawyers on a contingency fee basis.  What she did not address, and what was troubling to me, is that those with deep pockets would have an advantage in such a scheme, as we are already seeing with things like SLAPP suits filed by large corporations with deep pockets  --  SLAPP stands for Strategic Lawsuit Against Public Participation.  When presented with a SLAPP suit, as bad as it is now, think how worse it would be if public interest groups were to lose the suit and have to pay those expensive lawyers.  It is a form of intimidation not intended to win damages but to silence the other side.

I got to ask the final question.  I wanted to combine several ideas.  I referred back to her comments about 35-40% of the current cases being unanimous.  I asked how she and other on the Court balanced the need of the Court on some issues to speak unanimously to give a clear message to the nation, which could mean a less board ruling,  versus the need sometimes to make a sweeping statement of a basic principle.  I used as an example Brown v Board, because she had referred to the interpretation of Plessy as an example of how the way the Court ruled could be changed over time.  I noted that Warren seemed very careful to obtain a unanimous decision, knowing how controversial the decision would be, and thus Brown did not overturn Plessy, but ruled on a more narrow basis.  To this I contrasted the sweeping language in Robert Jackson's magnificent opinion in West Virginia v Barnette.  

O'Connor's response was quite interesting, and I thought quite revealing.  She began by noting that Jackson was one of the best writers the Court has ever seen.  She also noted that he was the last Justice to come to the Court without having attended law school.  She then wondered if there might be a correlation between those two factors, which of course got a bit of a laugh.   She then went on to discuss the need for balance, and her concern about the Court not moving too quickly, because it is often hard to see into the further how a ruling will play out.  She acknowledged that she is more of a small step person for precisely that reason.

I think her answer to my question shows why she has been reluctant to follow some of her more conservative brethren on things like totally overturning Roe or more recently in her willingness to continue to allow some measure of affirmative action.  She comes at things very much as the plain-spoken, common sense Westerner that she is.  She implied a concern for stability of the law where possible.  And the totality of her remarks makes clear to me that she is not happy with much of the current rhetoric by some on the right about reining in judges.

Watching and listening to her during the reception, where I had a chance to speak to her very briefly, she is a very gracious lady, with a genuine concern for others.  She gave each person her complete focus, and her remarks back usually reflected and included something of what the person had said to her.  Talking with several of the people on the Junto, I was told she is exactly like that when not in the public eye.

I think she still enjoys being on the Court.  And if I am right about her distaste for some of the current rhetoric about judges, one might well interpret that she would be reluctant to retire at this point.  She also remarked about the difference it made when she was not the only female on the Court, and my sense is she'd like to see a third woman appointed before she resigns, so that she does not leave Ginsberg alone nor is her seat viewed as a woman's seat, with her being replaced by a woman the way Marshall was replaced by Thomas.

But I also had a brief chance to talk with her husband.  My sense is that he is not in as good a shape as she is.  He was certainly not as mentally "with it", but that could be influenced by this being a night for his wife, and wanting to stay in the background.  I would guess that if she decides to step down, wanting more time with him will be a major reason.

One last observation  --- there were two Supreme Court policemen / security people, one for each of them.  They tried not to be too obtrusive, but except when the justice was onstage, one was always within 5 feet of her, listening carefully to the conversations, watching the people around.  It occurred to me that she has probably received her fair share of threats, especially by those on the right who view her continued tenure as an obstacle to seeing the law interpreted in the way they desire.

I still disagree with O'Connor on a number of key issues.  But after the evening, I cam away with a sense that she is a very grounded person, who have no inflated sense of self-importance, and who cares very deeply for the results of her work upon a nation she loves.  I'm glad I had the opportunity to attend.