1000
When
three US Supreme Court Justices met at Cardozo with eight of their counterparts
from the Court of Justice of the European Union, they discussed ways that
their courts and procedures were similar as well as different in an effort
to discover how they can learn from each other. Prior to the meeting, David
Rudenstine, Dr. Herman George & Kate Kaiser Professor of Constitutional
Law, sat down with Associate Justice Sandra Day O'Connor, the most senior
member of the US delegation, to discuss her thoughts about the day's conference
and to gain insight on the first woman appointed to the highest court in
the land.
Rudenstine: When looking at the history of the Supreme Court
and the dialogue that goes on among justices and scholars over how to interpret
and apply the United States Constitution, there is no evidence that we
have looked to Italy and France and Germany or any other country for ways
to interpret or rule on cases and legislation.
O'Connor: Historically courts in this country have been insulated.
We do not look beyond our borders for precedents. When I went to law school,
which after all was back in the dark ages, we never looked beyond our borders
for precedents. As a state court judge, it never would have occurred to
me to do so, and when I got to the Supreme Court, it was very much the
same. We just didn't do it. Occasionally we have to interpret an international
treaty - one, perhaps, affecting airlines and liability for injury to passengers
or damage to goods. Then, of course, we have to look to the precedents
of other member nations in resolving issues. But short of that, we have
tended not to pay any attention to what other countries were doing. Yet
most countries, at least in the western world, face similar issues from
time to time. Look at Canada. Canada has a Charter of Rights and Freedoms
that is parallel to our Bill of Rights - it is not identical but similar.
They have faced many of the same issues we have and at roughly the same
time. It is my sense that we have not paid close attention institutionally
to the jurisprudence of Canada or other nations. I think that's changing.
Rudenstine: As Justices consider a particular case that has been
briefed and argued and read, would you then also consider reading opinions
of a supreme court or a constitutional court in some other land as a way
of gaining additional insight on our own traditions or interpretations?
O'Connor: I would, if it were an issue that had a close parallel
in decisions of that other country. I would be interested to know how they
handled it, yes.
Rudenstine: In any opinion that you have offered, do you recall
citing an opinion of a foreign court?
O'Connor: Yes, but I don't have specifics to give you this morning.
It is a good thing to do occasionally. Let me give you some examples.
We had a case not long ago involving state laws governing physician-assisted
suicide. We have virtually no experience of that in this country - none.
And that was a case where we had some very useful amicus briefs and materials
that brought before us the experience of other countries, such as the Netherlands.
I found that this was very useful, and I suspect that if we looked we would
see some of these materials cited. I also recall that in some of the cases
in which our court was looking at state laws governing abortion, it was
very interesting to look at compar
1000
ative experiences in other western nations.
I suspect that we would find cited some of those materials as well.
When I was nominated in 1981,
and took the position, it was incredible to seefor women around the worlddoors openingon courts and for other positions, too.
Rudenstine: During the course of the year, as you meet with circuit
court judges and district court judges at conferences, meetings, and lectures,
is it your sense that this international flavor is having a trickle-down
effect as well?
O'Connor: All over the country federal courts are facing certain
international law issues as a result of treaties like NAFTA. If you go
to the Ninth Circuit and other areas closely affected by NAFTA, you will
begin to see some cases raising issues with international import: enforceability
of judgments, taking depositions. What about the enforcement of orders
from some decision-making body established by NAFTA itself as opposed to
a judicial judgment?
Certainly we have had to face extradition of people to and from this
country that invoke international issues. Our court has had a couple of
cases involving the alleged failure of state prosecutors to advise criminal
defendants who are nationals of another country that there is a consul
from their country with a certain address, with whom they may wish to consult,
as is required by the Vienna Convention. When that obligation is not observed,
an important issue of international law is presented.
I have had some contact with various circuit court judges to explore
the possibility of having circuit conference programs address issues in
international law. There is a great deal of interest in this kind of program.
I will participate on a panel this summer at the Ninth Circuit conference
focusing on international law issues.
Rudenstine: It's interesting to hear the two that you do cite,
because in my own experience in the classroom, I would flag both of them,
especially Justice Harlan, for letting you know exactly what's on their
minds. You mig
1000
ht not agree with him, you might come at it a different way,
but there's no way to walk away from a Harlan opinion without thinking
he's. . .
O'Connor: He's thought it through.
Rudenstine: And he's told you what he thinks. Is that partially
the quality that you find?
O'Connor: Well, yes, and it seems to me that he evaluated issues
in a very fair, equitable manner. He had a balanced and objective approach,
I think, to everything that I've seen of his opinions.
My sense is that jurists fromunderstand that our court occupies aother nations around the world
very special placein the American system.
Rudenstine: In thinking about what to ask you this morning, I
asked my daughter, who is a high school senior, "As you know, Justice O'Connor
is the first woman to be appointed to the US Supreme Court. If you had
a chance, what kind of questions would you ask her?" And then I got about
12! So let me run down the list very quickly. I think they are all part
of the same piece of cloth. What was it like when you were first appointed
and became a member of the court? Was there awkwardness or hostility of
any kind that you experienced? Did that change over the years? Did it particularly
change when Justice Ginsburg arrived?
O'Connor: There was no hostility at the court when I arrived.
The fact is, we are a nine-member court that sits on cases. When there
are only eight members, it does not function right, particularly in those
days when it often divided four to four. The members of the court were
just delighted to have a ninth member - male or female. They were all kind
and welcoming. What was a problem was the excessive amount of media attention
to the appointment of the first woman and everything she did. Everywhere
that Sandra went, the press was sure to go. And that got tiresome; it was
stressful. I didn't like it. I don't think my husband liked it. It was
a constant presence. And over the years, just because I was somehow symbolic
of something different on the court, when the court would hand down a decision,
there would be a little add-on: What did Justice O'Connor do in the case?
This changed dramatically with the arrival of Justice Ginsburg. All of
a sudden there were two women and we all became "fungible" justices, and
that was an enormous help. Justice Ginsburg is a very competent justice,
and it is a joy to have her on the court, but particularly for me it is
a pleasure to have a second woman on the court.
David
Rudenstine with Justice OíConnor:
Rudenstine: Over the period of the past fifteen or so years,
do you have a sense that the standing and position of women in the profession
as a whole has changed as a result of your appointment to the high court?
O'Connor: Clearly it has. When I was nominated in 1981, and
took the position, it was incredible to see doors opening for women around
the world on courts and for other positions, too. And law schools became
more open. More young women started attending law school. It's now half
and half, at least, if not more.
My concern was whether I could do the job of a justice well enough
to convince the nation that my appointment was the right move. If I stumbled
b
c65
adly in doing the job, I think it would have made life more difficult
for women, and that was a great concern of mine and still is.
Rudenstine: As you experienced that responsibility, especially
during your early months or years on the court, were there opinions that
you had the responsibility to author where you really felt this more acutely?
O'Connor: Any time there was an issue involving any kind of
gender discrimination, there would be a particular focus on "what is the
woman justice going to do?" Mississippi University for Women v. Hogan [1982],
for example, was a case in which there was a great deal of press attention,
and I ended up writing the majority opinion. So that was a focal point.
The abortion cases produced an enormous amount of mail to my chambers,
vastly more than to the other chambers, I am sure. I sometimes thought
there wasn't a woman in the United States who didn't write me a letter
on one side or the other of that issue. I have two secretaries, and we
were incapable of opening all the mail. We physically could not do it in
a normal working day.
Rudenstine: As you move around from forum to forum, especially
when you meet with international jurists and lawyers, there must be times
when there are conversations about the role of the Supreme Court in American
life. In my experience, this international group has a hard time really
appreciating what that role is, what it may have been in the past, and
what it might be in the future. How do you reflect on that role, and how
do you describe it in your conversations?
O'Connor: My sense is that jurists from other nations around
the world understand that our court occupies a very special place in the
American system, and that the court is rather well regarded in comparison,
perhaps, to their own. It is also my sense that jurists from other nations
believe our court has broader powers than most of theirs have in terms
of, for example, declaring a legislative enactment unconstitutional.
Many courts don't have the power of judicial review of acts of legislation.
Most high courts in other nations do not have discretion, such as we enjoy,
in selecting the cases that the high court reviews. Our court is virtually
alone in the amount of discretion it has. We are constantly grateful that
Congress has seen fit to give the court that amount of discretion. We would
drown in cases otherwise - cases that neither warrant nor merit the attention
of the nine-member court.
My concern was whether I could do the job
of a justice well enough to convince the nationthat myappointmentwas the right move.