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Sandra Day O’Connor Explores Supreme Court History, Inner Workings

April 4, 2013 at 12:00 AM EDT
Sandra Day O'Connor made Supreme Court history as the first female justice to serve on the bench. In her new book, "Out of Order," she explores other aspects of history at the high court, as well as her own approach to service. O'Connor talks with Judy Woodruff about making tough decisions and women in the legal profession.
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JUDY WOODRUFF: Next: a look at the inner workings of the Supreme Court and her own approach to service there, as told by former Justice Sandra Day O’Connor.

I sat down with her recently to talk about her new book, “Out of Order: Stories From the History of the Supreme Court.”

Justice Sandra Day O’Connor, welcome back to the NewsHour.

FORMER SUPREME COURT JUSTICE SANDRA DAY O’CONNOR: Thank you. I’m honored to be here.

JUDY WOODRUFF: So the book, “Out of Order,” you suggested at one point that this was done in an effort to bring the Supreme Court to life for people who view it as a sort of distant, forbidding place, to make it more human.

Why did you think that was important?

SANDRA DAY O’CONNOR: Well, I don’t know that it is, but I think people no very little, really, about the court, how it works and its history. And both of those things are important in our country, but they’re not things that most citizens know much about.

JUDY WOODRUFF: Well, you write — you tell so many wonderful stories and you write about the court in the very early days when some of the justices were riding circuit on horseback.

SANDRA DAY O’CONNOR: Yes.

That was a terrible and lengthy period of time for the court. Imagine being assigned from some distant place to be on the court, and then ordered to travel 90 percent of your time. And they had no trains, no buses, no airplanes. And they had to go horse and buggy or horseback, long distance.

JUDY WOODRUFF: It might have been a disqualifier today.

SANDRA DAY O’CONNOR: Oh, it would have been horrible.

I think most people didn’t want to do court duty.

JUDY WOODRUFF: You write about some — you also write about some fascinating choices for the court.

Andrew Jackson picked one justice who ran for president four times while he was serving on the Supreme Court.

SANDRA DAY O’CONNOR: Yes. Can you imagine? It was very different in those days. That’s for sure.

JUDY WOODRUFF: In all your — you did a lot of research for the book, Justice O’Connor.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Was there — as you looked at the presidents over time and how they made their choices for the Supreme Court …

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: … was there some — was there a set of qualities or a set of judgments that you think lent themselves to better choices for the court than others?

SANDRA DAY O’CONNOR: Well, yes. I can pick out a few grounds that would improve the chances of getting a good one, but I don’t think that was primary in the case of most appointments.

I think a great many of those appointments were really influenced a lot by the political situation. They wanted to put somebody on that the president himself thought was politically a wise choice and wouldn’t give him problems, by virtue of poor appointments. I think a lot of consideration was given to things like that.

JUDY WOODRUFF: Do you think that’s still the case today?

SANDRA DAY O’CONNOR: Well, maybe to some extent, but much less so.

JUDY WOODRUFF: You have spoken about this before, and that is the fact that American public opinion of the Supreme Court has declined. I mean, just recently, there was a poll that …

SANDRA DAY O’CONNOR: Apparently, it has.

It had historically — for many years, it had been higher than that of the other branches. And in very recent polls, I have seen a rather steep decline. And it may relate a little bit to the Bush/Gore case and all the unpleasant publicity that that produced. I don’t know.

JUDY WOODRUFF: Do you think, in the after …

SANDRA DAY O’CONNOR: You might have a better guess about it than I do.

JUDY WOODRUFF: But do you think, in the aftermath of that case and some other controversial cases, like the health care decision of last year on the president’s health — Affordable Care Act, that the court could do a better job of explaining to the American people why it did what it did, including in Bush v. Gore?

SANDRA DAY O’CONNOR: I don’t think it’s the court’s perceived role to do some explaining of a political nature.

They aren’t politicians. They aren’t running for reelection. And what they do need to explain is the legal reasoning for a particular decision. That needs to be done. But it doesn’t make for very exciting reading for people to read legal technicalities. But, often, it turns on that.

JUDY WOODRUFF: Do you think it matters how high the court is held in public — in the public’s regard?

SANDRA DAY O’CONNOR: I don’t know. It matters to me, as a former member of the court. I like to think that the court will continue to be held in high regard by the public. I think it should be.

It’s an institution that depends on making tough decisions in close cases for reasons that it explains well and that, in the past at least, have proven satisfactory to the public.

JUDY WOODRUFF: When it comes to sensitive cases, I notice that you did another interview recently with Rachel Maddow on MSNBC.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: And she asked you if you feel sometimes that the court’s legitimacy is threatened.

And you answered — and I’m going to quote — you said, “It’s always threatened if there’s an issue out there on which public opinion is divided. You want to be particularly careful about how you decide it not to offend people.”

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: So, my question is, how do you decide which group you don’t want to offend?

SANDRA DAY O’CONNOR: Well, you don’t want to offend anyone particularly.

But the decisions in many cases will bother a great segment of the public, of necessity. Some of these decisions are drawn by pretty fine lines, and on the basis of legal arguments that don’t have much resonance with the public.

JUDY WOODRUFF: So …

SANDRA DAY O’CONNOR: So I think it’s inevitable that some of the court’s decisions will be found by a segment of the public to be not the right decision or subject to criticism.

JUDY WOODRUFF: So how much should a justice take that into consideration?

SANDRA DAY O’CONNOR: Well, you can’t.

You have to answer the question, like it or not. And the questions deserve a valid legal response, even if the response isn’t one that will be easily understood. You have an obligation as a member of the court to do what you are bound to do under federal law, even if it isn’t an attractive resolution from a public standpoint.

JUDY WOODRUFF: I want to ask you about you — one of the things you write in the book, Justice O’Connor, is you write about women, the role of women, of course, as first on the court, the first woman justice.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: But you also write about the role of women as law clerks, very important …

SANDRA DAY O’CONNOR: Yes. Yes.

JUDY WOODRUFF: … appointments by the justices …

SANDRA DAY O’CONNOR: Very much so.

JUDY WOODRUFF: … and how there have only been — I guess, recently, there have only been as few of a third of them were women.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: But more than half of the women coming out of law school — of the students coming out of law school …

SANDRA DAY O’CONNOR: Are women.

JUDY WOODRUFF: … are Women.

SANDRA DAY O’CONNOR: Yes.

JUDY WOODRUFF: Why …

SANDRA DAY O’CONNOR: The number of law clerks …

JUDY WOODRUFF: Why is that, though, that it isn’t keeping up at the court?

SANDRA DAY O’CONNOR: I don’t know.

But, historically, it took a long time before the court took any women law clerks. Finally, it did, but the numbers have never matched very effectively the percentages of law graduates out of graduating classes. We have far more than we ever did before and it’s continued to grow, but it isn’t a nice match yet.

JUDY WOODRUFF: Did you — do you — is it something you ever discussed this with other justices?

SANDRA DAY O’CONNOR: Oh, I think it comes up on occasion, but not frequently.

Each justice hires their own clerks, and applications are made individually to the justices. It isn’t a group decision.

JUDY WOODRUFF: Excuse me. I didn’t mean to interrupt.

Was it something that was important to you to do, to bring in women law clerks?

SANDRA DAY O’CONNOR: Very much so. Very much so.

I like to have a pretty even distribution, and did.

JUDY WOODRUFF: I have one last question, because one of the reviewers I was reading of your book said he’s still looking for book from Sandra Day O’Connor that explains her judicial philosophy.

Is that a book that’s coming?

SANDRA DAY O’CONNOR: I don’t think so.

JUDY WOODRUFF: Why not?

SANDRA DAY O’CONNOR: Because I think it’s not necessary.

I’m not on the court anymore, so no use looking for my philosophy. If somebody’s waiting for that, they can wait for another justice.

JUDY WOODRUFF: All right, we will leave it there.

Former Justice Sandra Day O’Connor, thank you very much for talking with us.

The book is “Out of Order: Stories From the History of the Supreme Court.”

SANDRA DAY O’CONNOR: And I didn’t want to be out of order answering any questions.

JUDY WOODRUFF: Thank you.

SANDRA DAY O’CONNOR: Thank you.

JUDY WOODRUFF: Thank you.