Justice O’Connor’s Legacy
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RAY SUAREZ: Joining us to discuss the first woman to resign a seat on the U.S. Supreme Court are law professors and former Supreme Court clerks. Pam Karlan, from Stanford Law School, clerked for Justice Harry Blackmun. And John Yoo, from the University of California at Berkeley School of Law, clerked for Justice Clarence Thomas.
Professor Karlan, let’s start with you. How would you describe Justice O’Connor’s role within the nine? That’s how she liked to see herself, as one of nine Justices. What was the role that she played in the 24 sessions that she sat on the Court?
PAM KARLAN: Well, in the last 12 years since this court solidified, she’s played the role of being in the center of the Court. You know, I think Jan Crawford Greenburg was talking about a lot of the 5-4′s when she was in the majority, but even when she was in dissent it was almost always a 5-4. She was never on the bottom side of an 8-to-1 decision because I think she really describes where the center of American jurisprudence is today.
RAY SUAREZ: John Yoo, is that a fair assessment?
JOHN YOO: I think that’s exactly right, by being in the exact middle of a court that itself is deeply divided, she usually set by her preferences where the Court would go on a lot of the most important issues of our day like race, abortion, religion, the role of states. You can go on and on. Her views really did set the agenda for where the court was going in the future.
RAY SUAREZ: In so many of the appreciations that have been written and spoken today, Professor Yoo, it’s noted of course that this is the first woman to sit on the High Court. As in practice, in practice, what did that mean? Was this a person who was very conscious of that role, and did it show in the output of work, the kind of role she played in argument, for instance?
JOHN YOO: I think it did. I think she was very sensitive to the fact that she was the first woman on the Court. I think in cases that involved women’s issues she played a special role on the Court, in bringing that perspective. Sometimes she didn’t vote the way you would think a pro women’s lobby person ought to vote, so — one of the cases that was mentioned was a federal Violence Against Women Act Law. She was in the majority striking that down, because she did have a free commitment to states’ rights and to federalism.
But I think the other thing about her personality, her nature and being a woman that came out was that she was very much a frontier woman, as she wrote a book, a memoir, about what it was like growing up on a ranch. And so she had a lot of self-sufficiency, self reliance, I think, less faith in the government perhaps, more faith in sort of a decentralized government, and that was her signature issue, I think, for the career that historians will look back on, is that she really was the person who helped bring about and restore states’ rights and more of a balance of powers between the federal government and the state governments.
RAY SUAREZ: And, Pam Karlan, what about those women in that generation coming to adulthood in the ’80s and ’90s who were looking to make a life in the law, what did she mean to them?
PAM KARLAN: Well, I think one of the things that she illustrated was that women could aspire to all of the positions in law. You know, it’s kind of striking she graduated third in her class here at Stanford and couldn’t get a job at a law firm. And today of course a woman who graduates third in her class would be snapped up by law firms, by judges, perhaps by Justices on the Supreme Court as a law clerk.
And so I think she really sets a tone that shows that women now really are fully integrated into the legal profession in a way that in 1981, I think no one would have seen and certainly not in 1952 when she graduated from law school.
RAY SUAREZ: Professor Karlan, today in looking back at her career on the court, Professor Cass Sunstein from the University of Chicago called Justice O’Connor a judicial minimalist, saying that she left a lot of areas in law intact, but just whittled them a little, nuanced them a little, shaved off the rough edges of some of the precedents that she was asked to rule on. Did that become part of her role in 24 years on the Court?
PAM KARLAN: Well, that’s certainly true in some areas. So, for example, in affirmative action, she essentially in her Gruder opinion — involving the University of Michigan Law School — said you can have this kind of affirmative action but not these other kinds of affirmative action, and I think, you know, her abortion decisions and the undue burden test has that effect too.
But I think there are some areas where she really was pioneering in the way the Court set out the law. One of the most important and one that people don’t talk about much is an issue in criminal justice, which is Justice O’Connor in an opinion she wrote very early on the court, called Strictland against Washington, articulated the test that’s now used by all courts to decide whether or not a defendant in a criminal case has received effective assistance of counsel as the Sixth Amendment guarantees.
And for many years there she never saw a case where she was going to strike down a conviction because of ineffective assistance. But in the last three terms at the court she’s twice voted and been the fifth vote to strike down convictions or death sentences because a defendant didn’t get the counsel he was entitled to. And there I think her opinion was not minimalist at all; it really set the entire framework that courts use today.
RAY SUAREZ: Professor Yoo, in that idea that she wasn’t striking down precedents left and right, did that mean that a lot of issues have had to come back before the court and will have to come back before the Court because these decisions have been so finely wrought?
JOHN YOO: I think that’s exactly the right point, Ray, about the — maybe the down side of the way she decided cases. I probably would put it a little differently than Cass and Pam did in that I wouldn’t call it minimalist, I would say what she favored was balancing tests, deciding cases on all their facts, on their unique facts and always leaving the door open for future development of the law, for going a different way.
She did not like drawing bright line rules. And this may not have been her intention, but the effect of that is I think very much as you say; that means that cases always are open. Issues are never finally decided. And you have to keep going back to the Court to decide when you want to change policy. So abortion — her test was the undue burden test. Did the government regulation place an undue burden on the right to abortion?
Nobody knows what an undue burden exactly is so every time the government wanted to change abortion regulation, you have to go back to the Court and probably likely as everyone has been noting to Justice O’Connor, who was an exact middle of that court, for a decision about whether the government can do that or not. It does lead to very fine-tuned decisions, but also has the effect of increasing the power of the Supreme Court in our life and the power of the middle of the court on the Supreme Court itself.
RAY SUAREZ: Well, you heard Professor Karlan’s example of a case, the cases involving, and the case law involving ineffective counsel and how she departed from her own earlier decisions. Do you think that’s an example of someone who over a long career in a specific job is changing? Or was the context and the Court itself, and the temper of the times changing?
JOHN YOO: Well, I think one thing is she changed but also the Court changed. So for example, today, legal conservatives, of which she once was one in 1981 when she was appointed, it’s hard to imagine President Bush, for example, nominating someone who will get up and say I believe the way to interpret the right to abortion is the undue burden test. It’s very hard to imagine that being the legal conservative view.
So I think legal conservatism passed her by in the sense that it became more committed to bright line rules, to the text and structure of the Constitution. At the same time, I think she did grow and evolve in her views, and this is not an uncommon thing for people on the Supreme Court.
So I think her views on abortion and religion, for example, were much more what you might say conservative when she was first on the court than they were later. But the way she decided cases always left the door open for her to have that flexibility, and to have that wiggle room in case the facts in a later case made her think that she wanted to go a different direction.
RAY SUAREZ: Well, Professor Karlan, you heard Professor Yoo refer to the past tense, she was a conservative. Is that the way you see it, that she had really changed ideologically and was no longer what she came to the Court as in the early ’80s?
PAM KARLAN: No, I think she’s the kind of conservative that she always was, which is a kind of Republican that perhaps is diminishing class of people, who are generally protective and progressive on racial justice issues, and again this term in cases involving race discrimination in Texas and involving race discrimination in the California prisons she departed from the views of the extreme conservatives on the Court.
So I don’t think her conservatism has changed. I think there has been a huge shift in conservatism to her right. I think she has changed somewhat on some issues as anyone would, as they see the effects of different judicial rules.
And there’s some parts of the Constitution that the Supreme Court as a whole has long agreed are evolving parts of the Constitution: The cruel and unusual punishment clause, for example.
So that in 1989 Justice O’Connor could vote to allow the execution of mentally retarded individuals, and in 2003 she could say, the Constitution has and world consensus has evolved and the Constitution is supposed to follow that. So some of it’s a change in her, some of it’s a change in all of us. But I don’t think she has radically changed her views since she got to the Supreme Court.
RAY SUAREZ: We’ve been talking about the judicial legacy of Sandra Day O’Connor. Joining us now on more personal notes is Ronnell Anderson Jones. She’s a visiting faculty fellow at the University of Arizona’s Law College. She clerked for Sandra Day O’Connor and will teach a class with Justice O’Connor this winter.
What kind of boss was Sandra Day O’Connor?
RONNELL ANDERSON JONES: She was a wonderful boss. She was a really hard working woman, and had really high standards for herself and high standards for everyone around her. But it was a great privilege to be there with her during the term that I was there. She cared intensely about the work that was done there, took seriously the role she had, and expected us to do the same.
RAY SUAREZ: Well, I’ll assume that working with her is by definition different from working for one of the eight other Justices. What do you learn working in an office that she’s running about an approach to the law, about an approach toward precedent, about approach to the daily burdens of work?
RONNELL ANDERSON JONES: You know, I was talking to a group of co-clerks of mine and others who had clerked for her, and we all seemed to agree that the thing that we really learned was about integrity for the process. She had, she took so seriously the task of deciding the cases that were before her. And really while there has been a lot of dialogue about sort of what her jurisprudential stance was and even some criticism of it, she was really immune to what people outside were saying and she was focused on the task at hand, really getting to the bottom of what was right, and she encouraged us to do the same.
RAY SUAREZ: Was she very conscious of her place in history and did that color the way she wanted you all to comport yourselves and the way she handled herself in a public setting?
RONNELL ANDERSON JONES: I think she was keenly aware of her — she couldn’t help but be aware of her role as the first woman on the Court. But also I think — and was pleased that there was a woman on the Court and has said publicly a number of times that she hopes that there will always be women, plural, on the court.
But I don’t know that that necessarily colored all of her decision-making any more than any other aspect of her life did. Each of the Justices grew up in their own circumstances and had their own past lives, and I think that those things inevitably impact the kinds of decisions they make.
And her being a woman may have had some impact, but so too did her rural upbringing, her sort of coming of age at a time when there weren’t a lot of opportunities for women. She was the package deal, and I think you can’t necessarily separate who you are from the kinds of ways that you think about things.
RAY SUAREZ: Well, looking on the outside in, and certainly not speaking as a legal scholar, in argument she seemed to be the embodiment of the reasonable person standard, always trying to get down to the bottom of what a law would mean in everyday life, in the practices of daily life, what it would mean to the legislatures affected by it. Is that a fair observation?
RONNELL ANDERSON JONES: I think it is, I think it is. And I think it ties into a number of characteristics that I really admire about the Justice. She’s intensely interested in human beings. She cares about people as people. And she cares about the law as a vehicle for doing right things for people.
I think she has such a savvy sense of justice, and I really grew to appreciate that over the time I was with her, and she did ask a lot of questions about how will this result matter to real people in our country and because she is a real person and she is deeply connected to sort of everyman, and I think saw it without expressing it openly maybe saw it as her responsibility to make sure a she made good decisions for everyone.
RAY SUAREZ: And, quickly before we go, I guess the protégé is becoming the colleague. Tell us about the course you’re teaching with her.
RONNELL ANDERSON JONES: Justice O’Connor has agreed to teach a class here at the University of Arizona entitled, appropriately enough, the Supreme Court. She plans to talk to Arizona law students about the practice and the goings on at the Court and give them a sense of how the docket is handled and the things that happen there. They’re very excited; it should be a thrill for them.
RAY SUAREZ: Professors Anderson Jones, Yoo and Karlan, thank you all.