Justices Sandra Day O'Connor and Stephen Breyer

Good afternoon, and welcome. I'm Elliot Gerson of the Aspen Institute and it is our great pleasure and privilege to host all of you, this afternoon, for what we are confident will be an extraordinary afternoon of conversation and discovery. First, I would like to welcome all of our pass holders for the second session of the Aspen Ideas Festival. This is the formal beginning of your time at the festival and we're This is our transition day, our overlap day. And sadly it is also the time that I have to say goodbye and thank you very much to those of us -- those of you who were with us the first session, and we look forward to seeing as many of you back here, next year as possible. And also, and very importantly, I'd like to welcome our friends and neighbors in the Roaring Fork Valley who are here today for this session. And this session as well as the many sessions we've had every evening this week are design to make available some of the passion and the excitement that has animated our campus all this week to all of you who live here in the community. And we're thrilled to have you with us as well. It is now my pleasure to launch this conversation this afternoon with two absolutely remarkable guests. The Honorable Stephen G. Breyer was nominated by President Clinton to the Supreme Court in 1994. He took the seat that had been filled by Justice Blackman, a judge who incidentally, as we heard, over the course of this week, spent a great deal of time here at the Aspen Institute and time that was extremely influential in shaping his own judicial philosophy. Justice Breyer was born in San Francisco, attended Stanford, Oxford, as a Marshall Scholar and then Harvard Law School. He clerked for Justice Goldberg, worked as a lawyer in private and public practice, including a stint as Chief Council of the Senate Judiciary Committee. He taught at Harvard and he served as Chief Judge of the United States Court of Appeals for the first circuit before his elevation to the Supreme Court. The Honorable Sandra Day O'Connor was nominated to the Supreme Court by President Reagan in 1981 to take the seat vacated by Potter Stewart. She was born in El Paso, raised on a ranch in Arizona, and attended Stanford both for college and for law school. After finishing near the very top of her class at Stanford Law School, no law firm in California, although I think you were offered a position -- or an interview, although, didn't they offer you a position as a legal secretary? Well, I finally got one firm through an undergraduate friend of mine, whose father was in the firm, to give me an interview and after we chatted for a while, he said, "Well, Miss Day, how do you type?" And I said, "Well, fair." And he said, "Well, if you can type well enough, we might be able to get you a job here as a legal secretary." I didn't pursue it. Well, of course, at that time, it was almost inconceivable that there would be a woman on the Supreme Court. So Justice O'Connor turned to a public service very early in her career. She returned to Arizona, she became a lawyer for the state, a republican state senator, and then a senate majority leader. And I think she was actually the first female senate majority leader in any state in the country. She was then elected to a Superior Court Judgeship and then was appointed to the Arizona Court of Appeals by the Governor. By Governor Bruce Babbitt who's a participant here today. Yes, and as a matter of fact, I don't know if Governor Babbitt is actually here, but I think sort of in the spirit of Aspen Institute bipartisanship, I think we need to all thank him for reaching across the isle, and in that way contributing to the development of one of the most important and influential American leaders of really the last century. And just incidentally, the first woman who was -- had the privilege of sitting on the Supreme Court. I will start the conversation with each Justice, and then, open things up to the audience, and when we do that, we have microphones on either aisle in front, and when you do have questions, I ask you to keep them short and direct, and to end the questions with a question mark. Do we have to answer briefly and directly? No, you need not. And you can also express dissenting and concurring opinions. All right. Justice Breyer, the Supreme Court just finished its term. We're delighted it did or you wouldn't be here with us today. And as always, it seems that we learn -- we Americans learn more about the court in that last week because so many of the important decisions wait till the end of the term to be announced and a disproportionate amount of what we read about the court is written at that time. One of those cases, which has received perhaps disproportionate comment of course is Hamdan against Rumsfeld, and it involved as I think everyone in this tent know, presidential powers, Guantanamo Bay, the Geneva Convention and military tribunals. You were in the majority that reversed the Court of Appeals and you rejected the President's very strong assertions and the passionate arguments of the dissenters that such a ruling would sorely hamper this nation's ability to confront and defeat a new and deadly enemy, and prevent further September 11s. Those kinds of arguments, especially coming from the President in a time of war, must have been very difficult to resist. Yet you did, and you also wrote a very short concurrence, perhaps to inspire those of you who will be asking questions, very direct and concise. And I'm going to quote it. "Whereas here, no emergency prevents consultation with Congress. Judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine through democratic means how best to do so. The constitution places its faith in those democratic means. Our court today simply does the same." Was this a hard conclusion to reach? And can you tell us what you meant in that concurrence? Well, if it doesn't say what I meant. I'm unlikely to be able to help. Was it a difficult conclusion to reach? No, that conclusion was not difficult once it seemed conceded that in this instance consultation with Congress was not forbidden by some immediate necessity. Do you think the commentators who have questioned over the days since whether this is a very broad and sweeping decision of tremendous significance along with perhaps the Youngstown Steel case and the most important cases on presidential power, or is it a case about 12 men in Guantanamo? I think that -- the job, and I think -- I think that Justice O'Connor will verify this -- is a job in which you have a case and you decide it as best you can. And like so many things, I suspect that -- I -- see Senator Simpson, I bet that's true in all the branches of Government. What history will say or some other people will say about that decision is somewhat unknown and it's really up to them. But I'm not saying we didn't think this was an important case. Of course, it was an important case. But what it means precisely for the future is something that one really can't know until the future develops. So my job is to write the opinion as best that I can. And it is the job of the commentators to comment, which I never resent as long as I don't read it. Justice O'Connor, you of course, retired from the court and did not participate and you needn't tell us whether you agree or not, although you're free to, of course But I would like you to comment on the difficulty, whether in that case or other cases, you might want to talk about. That judges sometimes have ruling in a way that they strongly believe is right, but might be politically unpopular. And that is the importance of the principle of judicial independence. Indeed, it only took a matter of hours after that opinion was announced, that critics of the court, in the media, and even some in Congress condemned the court in very strong language and even worse. You've been very outspoken since your retirement about the importance of judicial independence and you've also written that you think it is growing and that it is an ominous trend. Could you comment on that? That the criticism is growing? Yes. I've -- you know, I've lived a long time now. And in my lifetime, I've never seen such very alert criticism of judges as I have seen in the last few years. And we've seen proposals, both in Congress and in state legislatures, that are very surprising in terms of proposing specific action in retaliation against judges who make a decision with whom the legislator -- a decision which the legislator doesn't like and things -- require some things such as impeachment of any federal judge who might cite an opinion of a foreign court or the appointment of inspectors general for judges to make sure they didn't make a trip to Aspen that was paid for by somebody, and provisions to cut the budgets of Federal Courts in retaliation for certain decisions. I mean, proposals to strip Federal Courts of jurisdiction over certain classes of cases. Now this is a remarkable series of happenings. We have a proposal in South Dakota, you may have read about, to change the constitution in that state to remove judicial immunity for actions by judges, jurors and witnesses in cases and to allow disgruntled litigants to then sue the judges, jurors and witnesses, and even put them in jail, if need be. It's called "Jail For Judges." Now, this is the climate in which we're living today and I worry about that. I hear clapping for "Jail For Judges." Well, maybe so. But my concern is that the framers of our constitution thought it was of critical, critical importance in establishing three branches of government, that we have an independent judiciary, at least at the federal level and all the states copied that model. Their thought was that without that, the provisions of the constitution that were so precious to our citizens couldn't be enforced. And look back in history. For instance, the decision of the Supreme Court in the 1950s, which was unanimous at the time, to strike down segregated public schools, schools segregated on the basis of race. That was a very unpopular decision in many parts of this country. If judges had consulted public opinion, they could not have found that resolution and we would still be operating with segregated schools. And yet today, I think all citizens of this country agree that we mustn't discriminate on the basis of race in providing public services and benefits. So, this is just one of many examples where judicial action was required and it might not have been popular at the time, but which overtime becomes clear, was a courageous and correct thing for judges to have done. Now, let me ask you -- let me ask you further on the importance of judicial independence from political pressure. Your judicial career began, I believe, when you ran for office. I'm sorry. Let me ask --a further question about the importance of political independence from -- judicial independence from political pressure. I believe you began your judicial career running for a judgeship, running for partisan election as a judge. Do you think that practice is a good practice in the United States? No. I come from Arizona and Arizona was a state that believed very strongly in populism and in the ability to recall judges and other political officers, and to elect judges in partisan elections. When I was in the Arizona state senate, I had seen at close range the result of partisan election of judges and I didn't like the results. Some judges were pretty good, and others were pretty bad. And I thought we could do better if we had a merit selection system such as that originally conceived by the state of Missouri, where state judges were appointed initially by the Governor based on recommendations by a bipartisan citizen's committee and then the judge would run for retention after a period of years and the voters could get rid of their judge if they didn't like the judge. But otherwise, would reaffirm for a new term. Now, I lived in Arizona long enough to see the benefits of that change and I was able to get it passed in Arizona, made the proposal and it was put to the people in the form of a constitutional amendment, which passed very narrowly in the same election in which I ran for and was elected for judge. And I've seen the benefits in Arizona of that system. Now that system is followed in only a minority of states in the United States, I regret to say. And in some of those states today, there are legislative efforts to abolish it. And that's part and parcel of this problem that I'm talking about. Thank you. Justice Breyer, in your book, Active Liberty, and I'm going to pitch both of these books by the way, the constitution as you all know says that the judicial salaries cannot be lowered while they're in office. But it also says nothing about increasing their salaries, which are much to low. So, please, do buy both of these books. I don't think either of us get any profits from it, so don't do it for that reason, okay. Well, it might be a good reason. Justice Breyer, in your book, Active Liberty, which was based on lectures that you gave just two years ago, you forcefully argued that the court should embrace an expansive concept of liberty, that liberty means something beyond protecting the minority against the tyranny of the majority. And that in fact, there's something fundamental to our democracy about the active participation of citizens in government. Can you talk to us a little bit about that central animating thesis in your book, and perhaps give us some practical examples of active liberty? I think the challenge was put to me by Sandra and I had to give these lectures to my former colleagues at Harvard and that's a difficult group. She said once, which was true: As you first become a member of the court, you begin to decide things and if the truth of the matter be known, I'm not certain how I'm going to decide things. I don't go to the court with an agenda and I don't think anybody does. But time will tell how we decide the cases as they come up. And the metaphors used, which is true is, "In those earlier years, you have footsteps, you create footsteps, they become firmer and firmer and it becomes harder and harder to deviate from what you've done in the past in terms of principle." So, after a few years, I thought I'd try to sit back and look and see if my decisions did form a kind of pattern and if so, what? So that's background. And I wanted to say that we see, and I think most of us see, the constitution after a while, in terms of a whole. That's a rare privilege in our job. A lower court judge works with bits of it. But we have a pretty broad view of it because most of it comes in front of us at one time or another. And if you ask any of us what is it about, it sounds a little bit like a fourth-of July speech. I'll say, "Well, what does it do?" And again we were sitting with Tony Kennedy and we were at a conference and Vartan Gregorian asks, "What's the most important thing to teach to the students of the United States about the constitution?" And we'd gotten some bar association replies, they said, free speech, or privacy or religion. We all had the same reaction. That's not what it's about. Those things are important, but that's not what it's about. What is it about? We all said democracy. That's what it's about. It's about creating institutions that do not permit judges or any one else to decide what to do but that permit citizens to decide what kinds of rules they want to govern their community. Now, it's a certain kind of democracy. It's a democracy that protects basic individual rights. It's a democracy that separates power among state, federal and three branches of government, so no one becomes too powerful. It's a democracy that insists upon a certain degree of equality and it's a democracy that insists upon the rule of law. Got it? Wouldn't everyone agree to that? And once you're there, you say, "Well, that's a fourth-of-July speech". And I want to say, "No, it isn't." Oddly enough, it isn't. Because if you're there working with the document overtime, you discover one practical thing and one purely legal thing. That those basic fourth-of-July principles do, in fact, help you decide concrete cases. They have a real role. And in particular, the one that I don't want forgotten and why I wrote this is that first word, democracy. We hear a lot about free speech. We don't hear that much about that word where it means something. It means that people go out and participate themselves. You need activist citizens because the activist citizens have to create the kinds of communities that they want by themselves without help, certainly without help from us. And if they don't, we say that constitution won't work. That I'm pretty sure is true. What are we doing up there? Well, I guess, what we're doing and it's hard enough, is we're trying to keep the democracy on the rails that the constitution set. I mean, you can't go too far this way, you can't go too far that way because there are protections of free speech, and there are institutional protections, and there is a division of power, and we get into terrible arguments about some of those meaning exactly of what rail. But we're still just there at the boundaries. And it's right in between those boundaries that the meat and bread and butter and potatoes or whatever you like, of that constitution takes place and that's the job of the citizen to participate. All right, that's a long speech. But that's what I'm trying to get across in that book. But, Justice Breyer, given the centrality in your view about active, passionate even, participation in government, we've been talking over the last few days about a number of things including declining electoral participation in this country, evidence of declining trust in the government, declining knowledge even about the basic principles of our government. Are there things you think that judges can do about that problem? The first thing for judges to do is to their job. I learned that from a judge a long time ago who said, "I don't want to be too" -- he said, "Look, a judge is a person who is given by political authority and the constitution a degree of power to affect the lives of other people. And in that narrow area, and it is narrow, it is narrow. In that narrow area, people will listen to you because you have authority. You try to go beyond that area and start to tell them what they ought to do in a lot of other areas, people will listen politely. That's because they think maybe sometime they'll be in front of you. But they're thinking something else, "Good bye. See you around. I've a lot to today. Thank you for the help." Okay. So, it's dangerous. But I would say, though, on your topic, there is something on that particular topic and I just wish some of the people, who are the most skeptical, to come into our courtroom for a couple of days, it's a good experience. Why? Because we see in front of us people of every race, every religion, every point of view, and believe me, 300 million people, there are 900 million points of view. And those people, so different, who really are angry with each other, really angry, they've decided to resolve so many of those disputes under law. Now that was true last year. It was true when we decided Bush v Gore. Think of how many people disagree with that one. Well, were they on the streets with sticks and stones? I didn't see them. Think of how many people disagree with us about abortion. Think of how many people disagree with us about prayer in schools. By the way, are we right on those things? I don't know. I know you have judges doing their best on it. That doesn't mean they're all right. They can't be right. They can't all be right, regardless despite the strength of feeling, people do follow it. That wasn't always true. Justice O'Connor gave you a few examples. Go back another 100 years. Remember Dwight Eisenhower sending the 101st Airborne to Little Rock. It wasn't nine judges who had to enforce those opinions, it was the paratroopers. Remember Andrew Jackson who said, "John Marshall made his decision, let him enforce it," and he sent -- not paratroopers, he sent some militia to evict the Indians. The court had said, "This land belongs to the Indians." He sent the troops all right. They evicted them and sent them to Oklahoma. Now that isn't true today. And so I'd say there is lot of improvement there, a lot of improvement. And when I hear all these arguments, I'm probably the only one in the country, maybe she does agrees with me too, but when I hear all the "Patriot Act, the country is going down the drain," "Oh, my God, this Right to Privacy thing, what a disaster, terrible." "This is the worst bill I've ever seen." I hear all that and I say, "Hey, that's not so bad." Why not so bad? Because I had to read -- for some other speech, okay -- I had to reread some things about Tocqueville and Tocqueville says, "In 1840, the first thing I noticed in the United States of America is the clamor," and by that he means everybody's screaming at each other. And they did scream at each other about what? He says, "Politics, that's what they disagree." And so we have a system. You don't like that Patriot Act? Scream. I mean, let's try to be civil, but then maybe there'll be some changes, maybe a few experiments, maybe we go this way, that way. At the very end of the day, the courts come in. But that is, it seems to me, the democratic process at work, not perfectly by any means. I don't applaud every bit of it by any means. But when you consider the alternatives, as we all know, it looks as if there is an awful lot of involvement in the United States and I think she and I would be the first ones out there to say, "And we'd like even more." Thank you. Justice O'Connor, when you retired from the court, you didn't retire to your ranch. You have been active in countless issues, and not just in this country, but also abroad. We've been talking about the independence of the judiciary. You've also spend a good bit of time and I'd like you to share with the audience why you think independence of the judiciary and the rule of law is so important internationally as well. The phrase "rule of law" was first proposed by a former American Bar Association president back in the early 1950s. And the concept was that under a rule of law, people through the democratic process have a hand in promoting and eventually, through their elected representatives, having laws enacted. And there are independent judges who can enforce those laws and in that way, we manage to peacefully resolve off disputes within our country, people he mentioned, Bush-Gore. And people didn't take to the streets. It was handled through court proceedings, enforcing our Electoral College system under which it is possible for the popular vote to go one way and the end result another. And that was what people found surprising. When it happens, it does seem surprising. But that's the system adopted by the framers. Anyway, the Soviet Union broke apart, what, 15-17 years ago, now. And that left an enormous part of the world cut off from the Soviet Union. They wanted to form their own nation-states. And 26 separate nation-states formed out of the territory that broke off from the Soviet Union. And they wanted to set up some kind of governmental structure and American lawyers and judges, as volunteers, agreed to provide some technical assistance to help them write constitutions, write laws, and very importantly, set up independent judicial systems to make those independent nations' structures work in a free market environment. That has been enormously successful. Not in every single one of those nations, but in most of them, many of which are now members of the European Union. They've progressed that far with their new systems of governance and it's been a remarkable thing. One of the things that those nation-states most admired from us was our judicial system. They like the federal judicial system they saw in this country and tried to emulate it. And the sad thing for me is to now see that under so much attack. Because rule of law, if followed in other nations, is our best guarantee of peace in the future. So I'd like to see that continue. Justice O'Connor, it -- I guess it's your fate always to be the first woman on the Supreme Court and you have been in your nonbelligerent sheer force of example, and responsibility, and influence, a powerful reminder of why women's participation as active citizens and leaders in all aspects of society is so important. Yet, since you left, on two occasions you have seen the opportunity to appoint another woman to the court go past. How did you feel about that? Sad, I had hoped that -- I had hoped that when the time came that my seat would be filled by a qualified woman, and I know we have a very fine Justice in office and this is to take nothing from him or his qualifications, but I wish he was in a skirt, that's all there is to it. Anyway, my -- that leaves one woman on the court Justice Ginsberg, who is a very able Justice, and she and I are often asked and have often been asked how does it make a different for a woman to be on the court. That's hard to answer because every Justice comes to the court with his or her own life experiences and we give to that process as well as we can, but both Justice Ginsberg and I tend to agree that if the end of the day a wise old woman and a wise old man will reach the same conclusion. So I'm not sure that at the end of the day you see a woman's decision and a man's decision. We hope it's a wise one, in either case. But I would like to see, not just two women on the court, but a good many more in years to come. I'm going to ask just one more question, so if people who will have questions if you might -- you might line up at this time. Justice Breyer, another topic we've been discussing a great deal this week relates to religion and politics, and in your jurisprudence you also write about considering consequences when you are a looking a particular constitutional issue, not just original intent, but consequences. You played a pivotal role in some important religion establishment clause recently and perhaps you could give us as an example of this considering consequences, how it is that you came out on two different sides, in both cases I think, in the majority on the 10th -- on the Ten Commandment cases, one in Kentucky and one in Texas? How did you do that and what -- and how did you employ that particular test that you write about? Through very careful consideration. That the -- you -- your -- the thing that -- the issue you want to get out is a little bit inside baseball, but I will give you a -- the philosophical issue. In my own mind, I tend to think the judges, whoever they are, appellate judges who are dealing with the interpretation of law have about the same ways of going about the problem. They read the text. They look at the history, what's the history of those words. They look at the tradition, what's the tradition of the use of those words. They look at the precedent. They look at the purposes underlying the clause, what's the fourth amendment doing there, what's it's purpose, privacy of a certain kind, what's the first amendment, well, part of it's speech of a certain kind, the purpose, the basic purpose. And they look at the consequences. How will the consequences vary? Consequence is not any old consequence. The consequence looked at in terms of the purpose. You're not going to look at privacy All right, so those six things text, history, tradition, precedent, purpose, consequence, that's where they're with basically, and those are the tools we use to answer a difficult problem. Now, some judges try to emphasize the first four. They say what we really should look at is text, history, tradition, precedent and stop there. Not always stop there, but most of the times stop there. In others and I'm probably in that second group, say, "Well, we better look at the purposes and the consequences. They're very important in an awful lot of cases," and so I'm probably more in that second group. I'm not against looking at text, history, et cetera, but I do look at the purpose and the consequence, all right. Ten Commandments case, that's what he wants me to talk about. He told me that in advance. Ten Commandments case, we have two examples, and they're fairly tough cases. You have one in Kentucky, where they put a Ten Commandments display in a court house and another one on the State Fairgrounds in Tennessee. The Ten Commandments right up over there and the clause of the constitution says, "Congress shall make no law affecting the establishment of religion." The establishment of religion, that's a tough one, what's that about? Well, I have -- in my view after, you know, doing as much research as I guess I could do is, that establishment clause there grows out of the 17th century really, when the Protestants were murdering the Catholics and the Catholics were murdering the Protestants in England and they just couldn't stop. And finally they reached a truce and the truce was, "I will practice my religion and teach it to my children, and you practice yours and teach it to your children." It was that mess there that led to freedom of religion and then in our constitution and establishment clause. So I think, well, I might have said this and people debate it sometimes, not everybody agrees, that that establishment clause has its one of its purposes trying to dampen down to prevent the disputes people can get into in society, the fights they can get into because of religion. Because when you have a fight that's based on religion it is not winnable because everyone is deciding on the basis of the most basic principle and they won't give in. So let's try to keep as few as possible and I see that as a purpose. Okay, now, we get to this case. Well, borderline cases. Has the government intervened too much in contravention of the establishment clause? Well, we have Kentucky. Now, there is some evidence there that the reason that they put up that thing in Kentucky, the display was they wanted to prove they could do it, ha. I didn't -- I mean, that "ha" just emerged. I'm not saying "ha". I mean, I don't know who said, "ha," but there might have been something that -- right, did you see the idea? The idea is, we want to create maybe a little controversy here. There is a strong religious element to putting that -- that thing in there. That's why they did it, to emphasize the religious nature because the Ten Commandants are religious, but they could also be used for a secular purpose. Now, let's look at Texas. Well, that's fine with that one. Now, we look at Texas, and in Texas this monument, it is a monument, the Ten Commandments, there is no doubt and the Ten Commandments are religious, but are they being used for a secular purpose primarily or primarily a religious purpose. Well, I know how they got there. Where was it, by the way? It was on the state fair ground or the state capital ground. Big grounds, they had 17 monuments. Indeed, if you count small ones, 21. What were they there for? It says they're here -- they're here to illustrate the ideals of the people of Texas. How many were religious? Just this one. How did this one get there? Well, it turns out it was Cecil B. DeMille who put it there. Cecil B. DeMille made this movie, and they found the actual memos where he wrote to his marketing people, "Go get the Eagles," which is a secular civic organization to put Ten Commandments all over the country and they will go to my movie. All right, so that was part of it and it had been there for 40 years and nobody noticed it. All right, so there I'm exaggerating, but you know, hey, be very careful. What I'm doing now as a judge is I'm recalling my own opinions. Now, a judge like a human being, I don't make a distinction between those two, but -- -- but a judge, as most human beings, remembers -- they remember things in their own favor. So if there is a distinction between what I am now saying and what is written on paper, it is the paper that governs and erase from your mind any of the things I'm saying. Now, with that qualification -- All right, with that qualification, you can begin to see why I thought this was primarily secular and more than that is what I said was if, in fact, we allow that Kentucky thing to remain, their people are going to put these religious monuments all over the country. But if we take down this Texas one, there will be people going all over the country trying to chisel Ten Commandments off of public buildings because they're all over the place. And I thought both of those things would, in fact, stir up the religious animosity that underlies the very kinds of disputes, irresolvable disputes of strong feeling and principle that that establishment clause is there to stop. Now, that was what underlay that view and there are probably few other people in the country that agree with me, but nonetheless, I thank you for the opportunity to explain it. All right. Now, let's go to questions. We only have about 10 minutes. So let's be quick with them and thank you.