This article is in the news archives --- for current news go to the Third Branch News.
Justice O'Connor Speaks Out
Justice Sandra Day O'Connor retired from the Supreme Court of the United
States on January 31, 2006, after 24 years of service. She was interviewed in
April 2006, by The Third Branch staff.
Q: You have expressed concerns about the attacks
against federal courts and individual judges and their opinions, compared with
other times in our nation's history. Is there an explanation for why the decibel
level seems to be particularly high at this time?
A: There is more intense criticism and concern about
judges in the country than at any earlier time during my life. There was
considerable criticism of the Supreme Court at the time that Earl Warren was
Chief Justice. I remember seeing billboards and signs urging the impeachment of
Earl Warren following the Brown v. Board of Education decision and some
of the decisions of the Warren court having to do with criminal cases. But that
movement died down and the nation, over time, accepted the Brown decision as
correct and appropriate. The American people eventually concluded that our
nation could not and should not discriminate on the basis of race.
Today, the criticisms of judges perhaps are an outgrowth of continued
unhappiness about the holding in Roe v. Wade, which held
unconstitutional some early term state restrictions on abortion. More recently,
complaints have been heard about judicial holdings on the subjects of sodomy,
the juvenile death penalty, posting of the Ten Commandments, and a few state
court decisions concerning gay or lesbian marriages.
In recent years, there have been proposals in Congress to use as grounds for
impeachment the citation in judicial opinions of foreign judgments. There have
been calls from some members of Congress for retaliatory budget cuts for the
Judiciary as a means of criticizing opinions that were unpopular.
There have been calls for depriving federal courts of jurisdiction over
certain types of cases. At the state level, there are efforts to eliminate merit
selection of judges in favor of a return to popular elections or nominations
requiring legislative approval. In at least one state, there is even a proposal
to allow lawsuits and even criminal sanctions against state judges for certain
decisions. The proposal is called J.A.I.L. for Judges.
Many judges and lawyers as well as non-lawyers are expressing concern with
the various calls for retaliation against judges for specific decisions.
Clearly, judges do not always make decisions with which everyone will agree.
Indeed some decisions can be justifiably criticized.
Q: Certainly the Framers of the Constitution wanted to
preserve the right to free speech, but did they envision the types and level of
attacks against the federal Judiciary that we are witnessing?
A: No one, I think, believes that judges are above
criticism. We live in a country where the Constitution protects the right of
free speech, which certainly includes criticism of judges and judicial opinions.
Nevertheless, when the Framers drafted our national Constitution, they were
very careful to provide for independence of the federal Judiciary. The Framers
understood quite well that without judges who could enforce the Constitutional
rights and guarantees without fear of retaliation, the Constitution would be
meaningless. That is why no term of office was provided for federal judges and
that is why judicial salaries for federal judges may not be reduced during their
service. The many calls for retaliation against judges for rulings in particular
cases, run directly counter to the concept of the Framers of the Constitution.
It is important that Americans understand and care about the context the
Framers had in mind in drafting the Constitution. It is vitally important that
the other branches of government refrain from taking retaliatory action against
judges. It is of course legitimate that ethical standards be enforced and
disciplinary action is taken against judges who engage in malfeasance or
misfeasance in office.
It is of course legitimate to criticize judges and their rulings if the
speaker disagrees with them. But it also is my hope that citizens across the
country will think about how the selection of judges can be improved at both the
state and national levels and will think about the necessity to compensate
judges adequately for the service they provide.
Q: What can be done to improve the unfortunate climate
A: It is very important that we educate students at all
levels about our Constitution, about the structure of our Constitution,
including the concept of judicial independence. All of us should be concerned
with the knowledge that schools are teaching much less, and in some cases
nothing, about civics and government to our students. There is no mandatory
testing on these subjects; there is no longer a focus on these subjects. Our
system of constitutional democracy will suffer greatly if this is not corrected.
It is also important that adults in this country have an opportunity to
understand the concerns about the need for an independent Judiciary and that
they have a chance to think about and discuss some of these concerns at public
gatherings. I hope that judges—both federal and state—will accept opportunities
when offered to talk about these topics.
Q: You have traveled abroad extensively to work with
and observe foreign courts in action. Do these judges and courts experience some
of the same conflicts U.S. judges are confronting?
A: For many years, the federal courts in our country
have been greatly admired by leaders in other nations. They have been held up as
models for judicial independence and effectiveness. There is less of that today
as people in other nations see attacks in this country on judges in the
circumstances I described above.
Our country has been very much focused on encouraging newly formed nation
states to embrace the rule of law and to develop strong, fair, and able
judiciaries. We have provided aid to many countries to help them achieve these
goals. It is ironic that at the same time we are supporting other countries'
efforts, we're seeing efforts in our country to damage or destroy our own
Q: You know a lot of federal judges throughout the
country and hear them talk about their work and their lives. How has the decline
in the value of judges’ compensation impacted the morale of federal judges?
A: Historically, the federal Judiciary has been
comprised of people who demonstrated their ability and achievement in the legal
profession, and who for that reason were chosen to serve on the federal bench.
In earlier times, the salaries paid to federal judges and the salaries paid to
people in similar positions outside the Judiciary were comparable. Today, that
is no longer the case and there has been a steady erosion of the salary levels
for federal judges compared to other positions. It is not uncommon for a law
clerk at the Supreme Court or a Court of Appeals to earn within the first year
of private employment as much or more than the judge for whom the clerk worked.
Salaries of law professors similarly exceed that of federal judges.
What may happen and what may already have started is that our judges will
become more like civil servants, starting at a very low salary in lower
positions on behalf of the courts, and working up to judicial appointments in
time. This is the system used by most countries in the European Union today. It
is not the choice that we followed in this nation previously, and I hope it will
not be the path we follow. It is not as attractive to be a judge today as it was
in the 1950s, 60s or 70s and I can understand the concerns that have been raised
by those who serve on federal courts at all levels.