May 2006

 

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 you describe?

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 system.

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.