Home Page About Me SpencerBrodsky.com
Interviews Galleries Quotes

 

An Interview With

Justice Sandra Day O'Connor
May 9, 2007

 

 

Introduction:

Sandra Day O’Connor was appointed by President Reagan to become the first female Associate Justice of the Supreme Court, serving from 1981-2006.

"Take one step at a time and keep walking. Improve your life and that of others."- Justice Sandra Day O'Connor

Spencer:


During the 24 years you served on the Supreme Court, you made decisions on some of our country’s most controversial and difficult issues.  What decision do you believe has had the most influence on our nation?

Justice O’Connor:


That's what history has to determine.  One decision that I authored had to do with the standard of attorney performance in criminal cases.  Indigent defendants who do not have counsel have to be given legal counsel, and there was a great dilemma about what the standard of performance was.

Because many indigent defendants who had been convicted of a crime come in later on appeal and said they had inadequate assistance of counsel, and the Court had to devise a test or a standard, and the case was called Strickland v. Washington.  And it involved establishing a standard, and it's been in effect a good many years now.  And there are hundreds of thousands of cases that have had to apply it, and so it has had a huge effect.  It's not one you would be aware of as a civilian, but anyway it's had a big effect.

Another case that probably had a pretty large effect was Planned Parenthood v. Casey.  I was not the sole author of that.  Indeed there was no majority of five, but there was a joint opinion produced by me and Justices Souter and Kennedy that established the holding of the case.

It was an abortion issue, and I think it was helpful at the time in settling some of the dispute and letting things get resolved a little bit.  So those two come to mind.  I'm sure there have been others, but I'll let history decide which ones mattered.

 

Spencer:


You recently participated in the Iraq study group. Of the 79 recommendations, is there one that you feel is most important?

Justice O’Connor:


The group, in its report, put at the beginning that our country should make major efforts to settle the dispute between Israel and Palestine, that that was at the bottom of a great deal of problems in the Middle East, and that that should be uppermost.

Secondarily, the report recommended that diplomatic efforts be undertaken with the neighbors of Iraq in the region to try to reduce the level of violence, and that meant, including Iran and Syria in those discussions.  And I think those two recommendations we put at the beginning because of the emphasis we thought should be given to it.


Spencer:


Most Supreme Court opinions are not unanimous, very different from the Taft or Marshall courts in the early 1800s.  Can you explain the value of dissent?

 

Justice O’Connor:


A dissenting view expressed in a case of statutory interpretation,  is useful to members of Congress because it outlines the issue and the reason why the interpretation was made by the Court. Congress then has the ability and power to change that if they want to.

If the present Congress does not like the interpretation given to a statute passed by an earlier Congress, the present Congress can write a new law, and having a dissent just kind of spells everything out for them.  It makes it very simple.

There are many instances where that has occurred.  Congress has looked at a particular holding, and then undertaken to make changes to make it suit them better, and so that's helpful.

Now, if it's a constitutional ruling, some issue of constitutional law, Congress can't change the interpretation of the constitution placed by the Court.  They can offer an amendment to the constitution, but those are very hard to come by.  It's very difficult to amend the constitution.

But even that holding, a constitutional holding, a dissenting view, over time, can point the way to a change.  And one of the most prominent examples of that was the old Plessy v. Ferguson case saying that public schools -- well, you can segregate on the basis of race.  So long as the schools for the African-American children are equal to the schools for the white children, it's okay to segregate.

Well, there was a very powerful dissent by Justice Harlan.  And it took until 1954 to change, but eventually the Court itself realized that Justice Harlan was right and the Court itself overturned that old Plessy holding and wrote an opinion in Brown v. Board of Education holding that segregating public schools on the basis of race could never meet the requirements of the equal protection clause of the constitution.  So I think that's a living example of a dissent in a constitutional case that made a difference.


Spencer:


I was fascinated by the Mississippi University for Women v. Hogan case.  Hogan was a man denied admission to a state‑run nursing school because of his sex.  It was in the year after your appointment to the Court delivered the deciding opinion that a state‑run school could not provide education for one sex to the exclusion of another.  What was the impact of this decision?


Justice O’Connor:


Well, I didn't deliver it.  It was signed by a majority of the Court.  It was a decision of the Court, which I was given the privilege of writing up, but it was joined by others so it's not just me.

What it did was just point the way to the analysis of a discrimination based on sex.  That was useful in subsequent cases coming to the Court dealing with other practices by government that discriminated on the basis of gender.  So I thought it was useful in the long run.  It proved to be.


Spencer:


Shortly thereafter your appointment to the Court in 1981, you said, "I think the important fact of my appointment is not that I decide cases as a woman, but that I am a woman who will get to decide cases."  What did you mean?


Justice O’Connor:


The point, I think, is that in my view and that of my former colleague, Justice Ruth Bader Ginsburg, at the end of the day, a wise old woman and a wise old man will reach the same conclusion on a case.

I don't think that women, at the end of the day, are going to decide legal issues differently than a man.  They'll all agree on the proper decision, but what is important is that the public out there sees that women are participating in making those decisions.

We live in a democracy where people vote for elected officials. In appointed positions, they don't vote for them.  The Court is a shining example of that.  But half our population are women, and I think they appreciate seeing women on this Court's bench and on lower courts as well.  That's what I had in mind.


Spencer:


Once you remarked, "There will always be a Moses when Moses is needed.”  It seems we desperately need one now. What was the idea you were trying to convey and who do you think is our modern-day Moses?


Justice O’Connor:


It's up to the people of this country to decide who that is, but we have many very serious problems, and we need strong leadership.


Spencer:


Supreme Court Justices are chosen by the President and approved by the Senate.  Some say it's too political.  Is this the best way?


Justice O’Connor:


Well, it's what the constitution provides and you're not going to get it changed so you better like it.  It's not going to change.  It's not bad, you know.  You have to find some way of selecting judges.  You don't want popular elections, I hope.  So that's as good as you can get.


Spencer:


Because that will be too political, is that why?


Justice O’Connor:


Oh, sure.  Many states, a majority of states, have partisan election of judges, and I can tell you, it is a rotten way to select judges.


Spencer:


Why is it a rotten way?


Justice O’Connor:


Because they get out there and slander each other, and they have to raise money for their campaign, and who gives them money?  The lawyers who appear before them.  Do you think you're going to get a just result that way?  Of course you're not.


Spencer:


So the decisions would be biased?


Justice O’Connor:


Oh, certainly that's the risk. It's a terrible system.


Spencer:


Justices of the Supreme Court serve life terms.  This is the way our founding founders wanted it to be.  Is there any reason to change?


Justice O’Connor:


They don't.  They serve for good behavior.  That's what the constitution says.  It means they can be removed by impeachment but, otherwise, it's up to the Judge when to step down.


Spencer:


 In the 20th century, we saw women and minorities gain rights and freedoms that would allow them more fully enjoy the privilege of American society.  What can we expect to see in the 21st Century?


Justice O’Connor:


Well, just further development on the same themes, I assume.  And we're certainly seeing litigation these days over different forms of gender discrimination based on same‑sex relationships, and I don't know how that's going to play out.


Spencer:


In your 24 years as a Supreme Court Justice, do you think your views have changed?


Justice O’Connor:


Not particularly.  But what happens at the Court is that I came from the state of Arizona.  I had been a State Court Judge.  I decided not many federal issues -- some, but not many.  And you come to the Court and have to decide an enormous range of issues covering an incredible array of different subjects and topics, and my view isn't changing as much as learning about new issues and new problems.


Spencer:


In preparing for this interview, I came across legal term “stare decisis.”  Justice Roberts used this phrase during his confirmation hearings when asked if he would reevaluate Roe v. Wade.  Would you explain the use of this term and what the Justice meant when he used it?

 

Justice O’Connor:


The term means the thing is decided, and we are a common law country. We devised our legal system based on Great Britain's.   Great Britain is a common law country.

It means that appellate court decisions become part and parcel of the fabric of the law, just as much as Congress had passed a law.  If an appellate court had decided something a certain way, then that becomes fabric of the law, and it's resolved, and a court deciding that same issue becomes part of the fabric of the law, and it's resolved.

And a court deciding that same issue isn't free to disregard the holdings that are binding on it from a higher appellate court.  This Supreme Court is bound by its own decisions.  And so if the Supreme Court, as in Plessy, had decided you can have separate but equal, that was binding on the lower courts.  They can't change it, and this Court couldn't either unless they overruled it, which ultimately they did.

So it means that the appellate court decisions are part and parcel of the law, and they're binding unless there's some change that's made.

 

Spencer:


It has been 25 years since you were chosen to become the first woman to serve on the United States Supreme Court.  During these years, some have referred to you as the most powerful woman in the America.  Some have called you the architect of American law.  How do you want to be remembered?


Justice O’Connor:


Well, I was asked that question in my confirmation hearing and I said I'd just like the tombstone to read, "Here lies a good judge."


Spencer:


I have one final question.  When your son, Brian, graduated from Colorado College, you gave the commencement address.  In it, you instructed the graduates "take one step at a time and keep walking."  Could you please explain this message?

 

Justice O’Connor:


It means as we go through life, you face certain issues and things you have to deal with, and you deal with them and you take that step.  And then don’t be afraid to take the next step and go on, improving your life and that of others

.

Spencer:


That's definitely an inspirational message.  Thank you very much.


Justice O’Connor:


Good.  Well, you're very welcome.