Supreme Court Justices Reflect on Judicial Independence
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GWEN IFILL: Justices Breyer and O’Connor, thank you so much for joining us.
Justice O’Connor, you’ve written a great deal about the independence of the federal judiciary and your concerns it is not as independent as it could be. It seems that the courts have become targets from the left and the right. Why do you think that is?
SANDRA DAY O’CONNOR, Former Supreme Court Justice: In my lifetime, I have not seen so much criticism of judges, and it comes about both at the federal level and at the state level. It’s all over the United States. I’m not sure why it’s so intense right now.
It’s focused on a number of decisions that some find troubling, and it has gelled into a kind of general accusation about “activist judges” who legislate from the bench, and there are many efforts being made at the state and federal levels to try to control that.
Protections for the minority
GWEN IFILL: I want to talk to you some more about activist judges, but I also want to ask Justice Breyer this question about this notion of having an independent judiciary. Why is that important?
STEPHEN BREYER, Supreme Court Justice: That's a good question. An independent judiciary, why did Hamilton and the other founders want it? The reason that they wanted it was because they'd written a special kind of Constitution. The main thought -- the main thought behind the document -- is that people will themselves democratically decide what kind of rules they want to govern themselves. That's...
GWEN IFILL: You're holding a copy of the Constitution right there.
STEPHEN BREYER: ... a working document. We have a working document here. And the idea of it is democracy; that's the basic idea.
But it's a certain kind of democracy. It's a democracy that protects basic human rights. It protects equality. It protects a rule of law, tries to see no one gets too much power. In other words, it also protects minorities from being oppressed by majorities, all kinds of minorities.
So Hamilton thinks that the basic protection for you, for me, for anyone who is a citizen of the United States, when they find themselves in the minority, the best protection against oppression, action taken outside the Constitution, is to have the judges decide whether that's so or not so, not because judges are any brighter -- they're not; we have no secret source of wisdom -- but because judges are appointed to be neutral politically. They are appointed to be unbiased. They are given, in other words, a degree of independence.
GWEN IFILL: Picking up on that point, I want to ask Justice O'Connor about something you once said in a talk. You said that part of the reason for judges to exist, the judicial branch, is to make the other two branches really angry.
SANDRA DAY O'CONNOR: Well, no. I think I said, if judges are doing their job...
GWEN IFILL: Right.
SANDRA DAY O'CONNOR: ... in playing out the role that the framers of the Constitution envisioned, that occasionally they'll make the other branches really, really angry. And I suppose that's true.
GWEN IFILL: Is it true?
SANDRA DAY O'CONNOR: Well, I think we've seen some examples of that. And the father of our Constitution was James Madison. He basically developed the scheme. And he thought that an independent judiciary was an impenetrable bulwark against wrongful assumptions of power by the other two branches.
Now, that may be putting it a little strongly, but certainly Madison and the other framers believed very strongly in the need for an independent judiciary when they created a system of government with three branches and with a written Constitution guaranteeing certain rights for the citizens.
Now, how else can they be enforced? Because the majoritarian branches of government, the Congress, can easily pass laws if the support is there that might withdraw certain constitutional rights. Now, how else can that be protected?
A system to right wrongs
GWEN IFILL: You know, Justice Breyer, you are obviously still a sitting justice, so you're constrained in some of your answers, but this whole issue of judicial activism that Justice O'Conner just referred to, some people say it's judicial restraint, some people say it's ignoring congressional intent. Is it in the eye of the beholder judicial activism?
STEPHEN BREYER: Well, on the particular criticism, I'll leave it to other people to say. I can say, from my point of view, we're always subject to criticism. Judges are always subject to criticism, and we should be. Why not?
The very reason we have written opinions is to say in those opinions what our real reason for the decision is. Why? In large part so that people can read it, understand it, and criticize it. It's also, I think, healthy for us to listen to the criticisms, for them to be evaluated, for people to try to understand, work out what's right, what's wrong, and good can come of that.
SANDRA DAY O'CONNOR: And are judges always right? Certainly not. Judges can be wrong, make erroneous decisions.
STEPHEN BREYER: And they do.
SANDRA DAY O'CONNOR: They do. And that's why we have...
STEPHEN BREYER: I mean, we're not always on the same side.
SANDRA DAY O'CONNOR: And that's why we have a system of appeals from lower court decisions at both the state and federal level. Now, it's a little harder to appeal when it's a Supreme Court decision, and that's when vocal critics come out. And that's all right. We have a First Amendment guaranteeing free speech. And people have that right.
GWEN IFILL: Does the constitution afford you a pretty thick skin on this?
SANDRA DAY O'CONNOR: Indeed. It needs to. And we understand that. You know, on issues that come before the courts, there are two sides, and one side is going to lose. And they're not happy about losing.
GWEN IFILL: But what happens when people say, "We're going to strip you of the power"? "We're going to impeach" -- mass impeachments I think was one term that some people were using for a while. Do you just ignore that? Do you just soldier on?
SANDRA DAY O'CONNOR: The concern that I have had recently is proposals to retaliate against judges for certain decisions. Now, that is not protection of the role of an independent judiciary.
It's fine to criticize, but if there's going to be some kind of retaliation against judges for carrying out their duties, that's something else. And that does worry me. There have been proposals to cut budgets in retaliation, to strip federal courts of jurisdiction entirely over certain classes or categories of cases. Congress has that power, but that doesn't seem to me to be in keeping with our notions of judicial independence.
History of disagreements
GWEN IFILL: Is there enough accountability to act as a counterweight for that independence which you assert?
STEPHEN BREYER: That's an awfully good question. If people think that judges are deciding things politically and not according to law, there's no reason that they should be independent. If people see that the court -- in fact, my court, this court, which has the most open, the most contentious cases, probably the 80 most open cases every year out of 8 million in the entire country -- of course we disagree sometimes.
The nature of the issue is that. Of course people feel strongly. My goodness, they feel strongly. But why wouldn't they? And people on one side, outside that room, are going to think the other side is wrong. That's the nature of the issue; that's the nature of the country.
You say, "Well, under those circumstances, do you want an independent judiciary?" I say, "I'll tell you." There are times when people didn't follow the court.
I like to go back to the 1830s when Andrew Jackson was told by this court, "The Cherokee Indians own land in northern Georgia." You see, they'd found gold there, and the Georgians grabbed it all. Andrew Jackson said, according to rumor, "John Marshall made his decision; now, let him enforce it." And Jackson sent the troops to throw the Indians out, not to enforce the law.
Now, I can remember -- I think you're too young -- but I can remember in my childhood Governor Orval Faubus being told by nine judges in this court, all signed the opinion, "You will integrate the schools in the South because this document, the Constitution, says equal protection of the law, and segregation is not."
And Orval Faubus said, "No." He said, "I have the state militia. You can have 900 judges. I have the militia." Now, President Eisenhower sent troops, the airborne divisions, and they went there, and they took those black children by the hand, and they walked into the school.
Now, that, to me, is a great victory for the rule of law and a necessary one, because if you think of Bush v. Gore, and you think of abortion decisions, and you think of school prayer, take your choice. They are enormously contentious, enormously.
And half the country thinks we're wrong on this, and the other one thinks we're right, and we're not in agreement. And they're very hard issues, very hard, but I haven't seen any paratroopers. I didn't see in any of those cases a need for the state militia, the federal militia. There were not bullets; there were not guns in the streets.
People in the United States of America have learned over 200 years that it's in their interest to follow the legal decisions even when they disagree.
Rebuffing threats to the judiciary
GWEN IFILL: If that's the best definition I've ever heard about the independence and the value of an independent judiciary, then what are your concerns, Justice O'Connor, about the threats to that and what can be done?
SANDRA DAY O'CONNOR: Well, we need to preserve it, for the reasons explained. And it isn't just the integration decision, which was so crucial, and which many people in the country disagreed with at the time.
Look at the situation with President Nixon, when some of his aides were accused of criminal offenses. And the court ordered President Nixon to give the audiotapes of his conversations in his office with these aides, and the president said, "No. I have executive privilege. You can't have them."
That went to court. And the U.S. Supreme Court, including at least three members appointed by President Nixon, unanimously ruled they had to be turned over. Now, that's another example of inter-branch conflict that was resolved in the courts, and not with unanimity around the country about what should be done, but look again how important it was. Four days later, President Nixon resigned.
GWEN IFILL: I think about the Terri Schiavo case, as well.
SANDRA DAY O'CONNOR: More recently. And there, Congress enacted a special law for one case requiring federal review in the federal courts of that state court decision in one case. Now, that's very unusual to have legislation requiring federal review in one particular case.
And the federal courts did their job and said there was no basis to overturn the state court decision. And that, in turn, was greatly criticized by some in Congress as being outrageous and calling for mass impeachments of the judges. I mean, this is disturbing, when there is retaliation proposed against judges for doing their job.
GWEN IFILL: Justice O'Connor and Justice Breyer, it's been a pleasure. Thank you.
SANDRA DAY O'CONNOR: Thank you, Gwen.