Vol. 37, Number 8—August 2005

Justice O'Connor Speaks On the Judiciary

Judge Johnnie Rawlinson (9th Cir.) (photo left) looks on as Justice Sandra Day O’Connor thanks participants at the Ninth Circuit Judicial Conference last month for the gift of a box of flies. O’Connor is an avid fly fisher. Photo Credit: Ninth Circuit, Office of the Circuit Executive

On July 1, Justice Sandra Day O'Connor announced her intention to retire from her position as an Associate Justice of the Supreme Court "effective upon the nomination and confirmation of my successor." Since then, Judge John G. Roberts Jr. (D.C. Cir.) has been nominated to replace her on the Court.

O'Connor served for 24 terms on the Court, and will leave, she wrote, "with enormous respect for the integrity of the Court and its role under our Constitutional structure." She talked about her years on the Court and her views on the Judiciary in a "Conversation with the Justice" during the 2005 Ninth Circuit Judicial Conference in Spokane, Washington, last month.

On the current state of the relations between the judicial and legislative branches, and on judicial pay:

". . . In all the years of my life, I don't think I've ever seen relations as strained as they are now between the Judiciary and some members of Congress. And it makes me very sad to see it.

One of the strengths of this country has been its federal Judiciary, and traditionally, in my early days as a lawyer, we looked at federal judges as being the very finest legal minds in the country. Weexpected that they would be drawnfrom the best in the legal profession.They made sacrifices to servebecause they were successful inthe practice of law and then wouldaccept, if offered, a position on thebench. And the present climate issuch that I worry about the future ofthe federal Judiciary.

For one thing, Congress has not seen fit to have judicial salaries keep pace with what would be expected of people in equivalent positions. I know when my law clerks go out and get a job, they earn far more the first year then any federal judge earns. And the pay of professors in the law schools exceeds that of federal judges. I mean, if you just look across the landscape, you see that it's been a struggle and federal judges like other people often have children to support and try to educate. Now it's always going to be somewhat of a sacrifice to serve, but it's gotten worse. And with the present climate of antipathy in the Congress, I don't see any prospect for adjustment of those salaries, and that's a disappointment. In fact, there are efforts being made currently to limit federal court jurisdiction to decide certain issues on an issue-by-issue basis in areas that some members of Congress think that the federal courts should not be involved. That's a new approach that's worrisome.

On the aftermath of Booker:

I thought that the Court's decision to require submitting to a jury the various aspects of sentencing determinations—when, in fact, determinations need be made—was one that was an enormous step for the Court to take after more then 200 years of not finding that requirement. And that it was going to necessitate a huge amount of work for the federal courts and the state courts to re-do sentences and get them handed down. And that it would not sit comfortably with the sentencing guideline regime that Congress had passed on a different understanding.

All of those predictions, I think, have come true because those of you in the federal courts as judges have seen the necessity to go back and review countless sentences, and to try and implement this new concept. The Court had to decide what to do with the sentencing guidelines, which as I say, sat very uncomfortably in conflict, in part, with that concept. So it held that the guidelines, the federal guidelines passed by Congress, would be not binding but, in effect, discretionary.

Congress is now taking a look at what it wants to do with that. I don't know what the outcome will be, but we know at least that there are many provisions being drafted to impose mandatory minimum sentencing. I think that has been a
concern to a lot of federal judges.

On the Supreme Court:

Well, the Court changed a lot in the years that I was there. When I joined it, our chief justice was Warren Burger. We still had sitting on the court Justice William Brennan, Justice Thurgood Marshall, Justice Byron White, and Justice Lewis Powell. Justice White once said that when you get a new member of the Court, you don't just have a new member, you get a new Court. And that's because it's only a membership of nine, and the nine work very closely together. Anytime you're with a small group over a period of time you just form working relationships of one kind or another that are in place.

On the Court's review of cases and as a battleground for polarizing issues:

The decision of whether to grant review of a case, whether to accept a petition for certiorari, is one in which every justice participates. This is one of the remarkable features of our court. It isn't assigned to a committee of the Court, of justices. It isn't assigned to a staff committee. All nine of us are responsible for reading all of the petitions for certiorari that are filed and the responses if there are any, and coming to an individual decision—do I think this is the petitionwe should grant or not grant?

Now, obviously, you can have some very serious issues that you know eventually the Court will probably have to address to the extent that conflicts develop in the lower courts on the issue. But we certainly don't have to take the issue the first time it's presented to us. And it's not at all unusual for the Court to fail to have four votes to take a case. If it's an important case, but it's only the first opportunity to look at it, we tend to be cautious routinely and wait until there really is a split of authority in the lower courts. If all of the lower courts and all of you go the same direction on an issue, there's no need for us to step in at all. So it's a judgment call. If there's a serious split out there, there'll probably be four votes to take it.

On what she is most proud:

In terms of what I'm proud of, I think it would be that President Reagan enabled doors to be opened for women. I never expected to be that person, and I was pretty scared to take that on, because it's a very hard job. And I didn't want to mess it up badly, because it would make it harder for other women to follow. And I hope it won't be that in the future.

. . . I think the Court is a wonderful institution, and I hope that the American people will see it as that, and will see all the federal courts in that light, even though of course there are occasionally decisions that a particular citizen won't agree with. That's OK. That's all right, and it's OK to say so. You know, we're not beyond criticism, certainly. But as an institutional structure, we've been so blessed in this country. And I do hope that our citizens see that and continue to believe in it.

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