Host
It gives me great pleasure to introduce the moderator of this program, who in turn will introduce the panel members.

Host
Next faith is a former Attorney General of the state of North Dakota. He's an honor graduate of Stanford Law School,

Host
a Rhodes Scholar and clerked for justice white,

Host
and our own inimitable, garrulous and avuncular judge bright.

Host
He is currently in the Fargo Office of Dorsey and Whitney. I give you Mr. Spaeth.

Nicholas Spaeth
Thank you, Judge McGill.

It's my pleasure to introduce the panelists for today's discussion. The first one I want to introduce who was on my far left. Judge Lindsay Miller Lerman was familiar to the attendees at this conference because she's been to many of them in the past. She's a member of the Nebraska Court of Appeals since 1992. Probably That she was a partner in the Q tech rock firm in Omaha. She's a graduate of Wellesley College, Heather JD from Columbia Law School, where she was on the Law Review. And she clerked for judge Constance Baker, mostly in the Southern District of New York. On my far right is judge Jim Logan of the a circuit who's been on the court since January 1 of 1991. He got his Bachelor of Science at the University of Wisconsin, his LLB from Harvard Law School. He was a law clerk to judge Lombard and the Second Circuit, and they, as he and I share the distinction or honor of also clerking for justice white. He was on the White House staff from 1972 72. a partner it Fabian Benson from 1973 till 1990 when he came on the court. The real stars of the show, of course, are justices white and Connor. And when I was preparing to introduce them, I was struck by some of the remarkable similarities in their background. They both grew up in rural West. And both had I'd say hardscrabble early times in their life. And both reached the US Supreme Court in large part due to extraordinary personal effort on their behalf. Justice O'Connor is an Arizona native and she grew up on the lazy be ranch in Arizona, which my father would be impressed with his little farm you 198,000 acres according to the biography of the justices, voter early childhood friends were her parents ranch hands, a bobcat in a food a few have Alina hogs. She entered Stanford at the ripe age of 16. graduated magna cum laude in 1950. Immediately entered law school, served on a law review and selected the order of voice. She and her husband and family returned to Arizona where she raised her family there I should say, and she had a distinguished legal and political career there, including a stint in the legislature. became the first woman to ever be Senate Majority Leader of the state legislature in the history of United States. She also served as a state trial and appeals court judge before she became a 1982. The first woman appointed to the United States Supreme Court. Justice wide seated next to me on the other side, wanted me to make sure you understood that he's retired now. Not an active supreme court justice. But he is. isn't a nice from up the road apiece as he would put it. Wellington, Colorado, attended the University of Colorado where he astutely pursued and won the hand of the President of the University of Colorado. Marion, why'd you see you out there? I think I want her to stand up. Marion.

Unfortunately, Justice O'Connor husband couldn't be here. I didn't introduce him as well. Justice white, graduated from the University of Calgary rato and then earned a road scholarship for World War Two interrupted and he had to return home, enrolled at Yale Law School and put himself through law school with one of the most interesting part time jobs I've ever heard of. He was an employee part time of the Detroit Lions. He's also, as I found from personal experience, a pretty fair basketball player, eventually listed in the Navy. And after the war finished law school where he was then a clerk to judge excuse me, Justice Fred Vinson was a Chief Justice of the US Supreme Court. He practiced law in Denver for a number of years and then came to Washington with the Kennedy administration as Deputy Attorney General. He became a justice in 1962 and stepped down just at the end of his term after 31 years as a Supreme Court justice. Having to Justice O'Connor a little bit about her biography, I found one thing of note and justice White's biography. It said that he was rejected by the Marine Corps during World War Two because he was color one.

I thought that explained Live

at least his votes on a civil rights cases.

That's our panel. We're going to just rotate with questions and perhaps if there's time at the end, we'll have some questions from the floor. We intend to finish promptly on time because a couple members of the panel FT times.

First question will be from judge Miller one.

Lindsay Miller Lerman
As some of the country's may recall, we had a similar conversation with justices white and Justice Stevens at the 1991 session. Are you all able to hear me in the back? We're going to be sharing a mic apparently. And at that time, just as Stephen said, that the departure of the Justice is a very, very traumatic event for the court. And I'm wondering if I might ask Justice O'Connor, if she would comment individually about her reactions to the changing person. And in particular, a departure of adjustments from the port.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yes, I will, you know, with just nine people there. We work closely together, we see a lot of each other. We become somewhat familiar with each justices characteristics and work habits and and when there is a change in the court, we all feel it very deeply. In fact, I had been there a while before we had a change of the court and I remember justice white telling me that it isn't just a change of a justice. The court itself changes with each one of these things. So we take it pretty hard when somebody leaves us and we take it particularly hard When justice white decides to leave us, you see he had the institutional memory of the court. We all benefited from that 31 years, he could tell us how it was not only bad, he'd been there under Chief Justice Benson as a law clerk. So he really know how the court has handled all of the things that come before it over a great period of time. And we're going to be pretty hard pressed there to find our way through the thick that of some of these things without justice white to help us and it's a very painful thing to lose the justice. On the other hand, we will all be welcoming the new justice who's going to be sworn in Next Tuesday, Justice Ginsburg, and I for one couldn't be more pleased that we will have a second woman on the court. I think it's just terrific. And I think she knows all of us quite well. And I suspect She will come on board and and fit in with great ease and a feeling of collegiality from the first. So we certainly hate to see justice by leave. We think we're in good hands with our new justice.

Nicholas Spaeth
Check. Welcome.

Unknown Speaker
Well, Justice white, I'd like to draw on the institutional memory that's just been attributed to you. The Supreme Court, of course, is a permanent institution and yet the day to day decisions are very much the product of the current justices. And I'd like to ask you to look back over You're 31 some years on the court, which I think 12 or 13, new justices came on to join you over the period. Do you think the court as an institution has changed during your decades there? And also, do you think that the public's perception of the court has in any way changed?

Byron White
Well, I'm not sure I can answer your second question as well as, as well as these people in the audience. So I won't really try to do that. But

I think your question,

in part depends upon what level of generality you want to answer it, obviously. Obviously, the assigned task of the court hasn't changed at all. The court has is not the duty to decide questions of federal law, whether its statutory or constitutional in a final form, provided that The questions appear in the context of a case or controversy and or otherwise justiciable. In that sense. That's the way the courts always been. But if you want to go, be a little more specific, come down to level. Why I think the court there has been some substantial changes in the court as an institution. And sometimes I approach it as how has the reach of the courts mandate change during the years, I suppose you would all agree that

perhaps the most dramatic

retraction of the reach of the courts mandate was in during the Roosevelt administration, when the court in effect retired from trying to run the economic life of the of the country. On the other hand, since that time and even during my years of the court, the mandate of The court has been considerably extended because various provisions of the bill of rights were applied to the States. The fourth amendment, most of the Fifth Amendment, the six, not the seventh, but the eight. And as a result, of course, the the the Federal Constitution had an awful lot to do with state criminal cases. If you want to generalize, what are the kinds of cases we have? We, we There's our federalism cases. And I while I've been on the court, I think we've been the court has become much more careful in finding preemption of upstate law by virtue of federal law. I think the Commerce Clause has been considerably defined and narrowed insofar as it affects state taxation, and things like things like that. And I think that last few years, the reach of federal habeas corpus has been considerably contracted. I don't think much has happened in this in the separation of powers issue a issues that that wasn't true before. But certainly the cases indicate that there's still a, a, a separation of powers theory in the federal government. There are just some things that some departments shouldn't stick their nose into, insofar as interfering other other other departments work.

And, of course, the, as I say,

the Bill of Rights and the other provisions in the constitution that tells governors and presidents and congressmen how they what they have to what rules they have to comply with they want to govern the country are still are still interested in the best in the mill. And

that's just simply the way the way it is.

Unknown Speaker
You do find this continuity at the at the broadest level, but change in evolution that the more specific to be healthy and just what we want from the institution.

Byron White
Well,

Unknown Speaker
without having to agree with every change.

Byron White
Well, I know but I, I think that decisions of the Supreme Court aren't going to last Unless Unless they are long range interests of the country, as reflected by the thinking by the majority of the thinking people in the country and that's what happened in the Roosevelt administration. And that's the way that's the way it will be. 13 new justices did arrive while I was on the court, and every, every single time the court was a different instrument, as Justice better indicates, you would sit there and several years and say, gee, this new justice had come on this case would be decided differently. But that's the way the court renews itself, getting new people on the court. Hopefully, those who are younger, more in touch with reality, and who can bring a you know, bring a fresh breath to to our work. And there are lots of choices that have to be made. Sorry to be so long.

Nicholas Spaeth
I'd like to follow up on a reference you made to hideous corpus, although I'm going to take you off with looking at dresses to Justice O'Connor, as I've observed the work of the court. Even since I was a clerk there, one of the most striking things has been an effort subconscious or conscious to our stance, reduce the docket, first of all, and making ABS corpus more difficult. But you can see it in other areas to state there's a more conservative view of standing out and there was in the 60s and I think, if I was more tonight could probably give you half a dozen other examples. And I wonder to what you attribute that to? Is it a unconscious reaction to a document continues to grow? Is it a political objective, or you know what's going on?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I don't think that any of the habeas case resolution is attributable to either a conscious or an unconscious desire on the part of the court to reduce that stock. Since I have been there 12 years now, Congress took a momentous step above Four years ago, Congress decided to make our mandatory appellate jurisdiction discretionary. Now, By my calculations, roughly 15% of our caseload each year was attributable to that mandatory appellate jurisdiction. Today, we apply the same standard of review to an appeal that we do to a petition for surgery. Very, it's discretionary. It's a judgment call whether to take it. And the result of that was an immediate reduction in the number of cases on our docket. So we didn't have to do anything to reduce our docket. In fact, it is lower than when I came to the court 12 years ago, at least the number of cases we take for review is the number of petitions file has escalated considerably and the greatest in Greece has been Pro Se prisoner litigation and the passage of the sentencing reform law, a guidelines and so forth, which the Courts of Appeal are saying, in abundance in their case loads. We see in our petitions, we haven't chosen to take a lot of those cases, letting the courts of appeals and the guideline commission itself, deal with most of them. So although the numbers of petitions are of the numbers of cases we've taken is down, and by no conscious action on our part, I think now, when we see the court alter, as it has some of the heaviest doctrine, I think those decisions are being made on the basis of The understanding of the justices who constitute the majority and a given case of the proper role of the federal court in a federal system, and certainly in a federal system, that great bulk of litigation is handled in state courts, not federal courts. And the vast majority of all criminal cases are prosecuted and state courts, not federal courts. And there is a notion out there that at some point, these criminal case, convictions should become fine, that it shouldn't be an endless revolving door. And I think you see a manifestation of that belief and some of these ABS cases that have emerged over the last what six Cheers are so

Nicholas Spaeth
thank you just

Lindsay Miller Lerman
as things evolved here I have sort of a question in a in a parallel area, if I may to Justice O'Connor in connection with a the cases that the court does choose to hear. The court watchers may have observed that in June there was three religion cases that were for which the opinions were released. And I guess the the question Bradley would be what why do we have this cluster in this? Is this deliberate and you need a group of cases to put together the patchwork in the area? And you go about that?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I hope justice fight will comment on this too. But what I see generally, is that when our court decides that we have to grant search a rarity on some particular issue of law that is because we are saying that same issue crop up all across the country in different manifestations. And we will see some issue emerge as one that is troubling the courts all across the land. And we will take one such case if there's a conflict out there and hold the others until we resolve the first. Or we may decide that there are two strikingly different aspects to the problem. And we need to take both two cases in a given area and decide both and hold the rest. So it isn't surprising that you might find in a given term, two or three cases, dealing as they did this term, with Civil forfeitures and drug cases. And as you mentioned in the religion clause area, and sometimes you'll find that in the course of writing a decision in one of these cases, you're going to be affecting to some degree the approach you take in the related case. So you'll end up handing both of them down or all three of them down in a fairly short time span. And I guess that's not unusual, maybe justice fight with comment.

Byron White
I didn't think in this last term that we had any that we deliberately chose these three religious religion cases.

Just because we wanted to,

to group them together, as I recall it, they were Granted at different times. And it just so happened, that the opinions I suppose the opinions just weren't written and didn't get ready to hand down till the end of the end of the term, although it may be that, that if something that one case said, affected in another, you I you wouldn't hold both. And at the same time,

Nicholas Spaeth
Justice O'Connor mentioned something very important, which is the role of the court and address of jurisdictional conflicts. Justice widened somewhat legendary and number of descends from denials, and he's issued over the years and cases the court is not taken because where there's a jurisdictional conflict. And I wonder if here Justice O'Connor might fall off on whether or not that's less of a problem now that the appellate jurisdiction has been eliminated or whether there's still a problem with jurisdictional conflicts are not being resolved.

Byron White
Well, I didn't know that I was just sending in cases that involve the jurisdictional conflicts. I think the court normally takes cases where courts of appeals or our state courts and decide cases that affect their jurisdiction. I think we usually I think we usually do take those. But I have been descending in a very boringly to my colleagues, I'm sure where, where there are primarily different constructions of federal statutes by different courts of appeals, or in constitutional issues where the state courts and the federal courts are in somewhat of a disagreement.

For me, Me.

The court has been turning down a lot of conflict cases of that type that I think in the 60s and certainly before that might have been routinely accepted. But the rush of litigation in the 60s and 70s.

Just made it impossible for the court to to

take all these cases and I and I can see it, I can see to that. But I simply wanted to call attention to the fact that at least I thought there were some other cases that shouldn't be decided, and that perhaps something to be

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
said or done about that. You know, this is this is a good example of how the court is going to miss just as fine because we could always count on him to place on our discussion calendar. those cases where there is some kind of a conflict out there that we at least ought to take a look at. We might not agree that all should be taken, but we could count on justice fight, to call it to our attention, and to circulate a descent from denial of service, your area be felt strongly that the court really should take something. Now, I'm not sure who's going to take on that role. And it bothers me a little bit. We've kind of coasted and let justice white. Be sure that our discussion calendar is full. And I think we're all going to have to be a little more attentive now to our conference discussion list and make sure that we get cases on for discussion of to be sure that we aren't overlooking something we have a take. It's a perfect example of how his absence is going to be felt quite strongly by our court.

Unknown Speaker
Well, this discussion of of taking cases to define or clarify an unsettled area, the law reminds me of comments. I've heard from time to time from judges and lawyers that the current court doesn't do a particularly good job at arriving at majority opinions that command at least five votes so that they do define the law, at least, for pending further developments. And I'd like this These justices, whether whether they think the current justices think that's part of their job description, and if so, would they would they agree that they're not doing it as well as they should?

Byron White
I think judge Logan has asked me this question before. And I'm going to give him the same answer that I did before.

When I came on the court, I think there were about 2000 And petition for search every now there are over six. And if you think that that out of two out of out of 2000 pieces that that there would be maybe eight or 10 very, very hard, tough cases that the court would have some trouble getting a court majority. What do you think we What do you think is happening with 6000 cases? I think that when we when we have really tough cases, and there are a lot of

Unknown Speaker
it is just hard

Byron White
to get a majority opinion. After all, that the constitution doesn't say majority opinion, no statute says majority of majority opinion. The court started out as like the English court. They just they were decided they were delivering a opinion Siriano each judgment say his opinion and leave it up to the lawyers and the lower court judges to figure out what that judgment man. And I just can't believe the that you're complaining about that. And, and by the way, the public and I've said this, I said this, I think in every single part of the Judicial Conference that I've participated in, the public ought to be glad that they're in some cases, that there's only a judgment and not a court of a court of court opinion that's laying down a broad rule in a very tough area where that rule might, the court might live to regret it. judgments are there and there are bound to be much narrower than then where the opinions and I think that it has allowed the court to creep along in some areas. Rather than take some giant steps. You might, you might regret. So I think we're doing A great job.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, now I want to add agreement to the point that justice white just made. appellate courts traditionally move by taking very small steps, incremental steps. And if doctrine is changed, it's likely to be done incrementally, not in one fell swoop. That's typically how appellate judges work in a common law system. I think our court tends to work that way.

Nicholas Spaeth
Let me rise to the defense of Judge Logan and make one point that I think is relevant to this. And that is the footnote count. All you have to do is take a look at the opinions issue today and pair them with 50 years ago and you will notice credible information the number of footnotes, many of which debate, to be speak, to speak terribly, relatively small points, and I wonder how that is advanced.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, now you're Not counting O'Connor opinions and or white opinions present company

Nicholas Spaeth
excluded.

Lindsay Miller Lerman
This is a hypothetical question, isn't it? Nick?

Nicholas Spaeth
I don't I don't think I'm gonna get an answer from it.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I try not to use footnotes, what I do if I have a bunch of string sites, because it gums up the text so much, but otherwise, I try to avoid them. So count me out.

Byron White
And I, I try to deliver at least one or two opinions every year without a single foot.

Unknown Speaker
Well, how do you can you talk a little bit about how you make the decision to write separately in a case either concurrence or dissent. And also, can you think of of situations where you've written separately and seen that sort of backfire in the sense that your separate opinions seem to push your colleagues in the direction you wish they had? Gone?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I I can remember a time or two where I wrote separately because the court did not go ahead and address something that I thought was sure to require our court to address and was bound to come up and that it would be better to say something about it in the majority opinion. And on occasion, the majority will feel that it wants to deal more narrowly, than that was an issue and doesn't want to talk about this related issue at all. And on occasion, I will go ahead and write something to at least talk about it. And sure enough, occasionally, we will get a case later on that raises bat and then it will cite the concurring opinion and ask the court to come cetera. So it does come back to haunt you in that sense, sometimes and the court ends up ultimately having to address the thing that some justice spoke about in a concurring opinion.

Lindsay Miller Lerman
When when we fear opinion, or a group of opinions, for example, in this last term on the punitive damage case, the case the case in which the punitive damages were affirmed, and it was a 623 vote, and I met sure I've counted all of the of the opinions correctly, but I think there's three separate opinions in support of the affirmative. And I guess I should say, for the benefit of the audience, that the center is included, Justice O'Connor, justice, white and Justice Souter. But nevertheless, when you see the 63, and you see a bunch of opinions is that is that a forecast that we might see cases of this nature again soon, and I didn't address that either of you particular punitive damage cases? Well, that's just the particular example. But I'm wondering if when there's less unanimity. If that's a forecast that the subject matter may be coming up? Well, not necessarily.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
It may be a recognition that the court isn't just going to deal with something, and maybe you're not going to see it again. I don't

Lindsay Miller Lerman
know. See, the signal may be to go away.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, just that the court didn't deal with it successfully. So why take another one? Black around again.

Nicholas Spaeth
But there are examples where that has been and I think the obvious case is the 10th amendment cases where I don't remember when it was the Justice rank was constantly predicted it will be back again and go the other way again, and that may have something to do with rule for but does seem to be there are situations where the sense like that do predict a future return.

Byron White
Well, that may that may be so but

I don't think a lawyer ought to be paid, he loses

six to three. And then with another client that takes the same case up, unless there's been a change in the composition of the court. And I would think that was there a change in the composition of the court between the 210s of member cases? One?

Nicholas Spaeth
Yes.

Unknown Speaker
All right. All right.

Lindsay Miller Lerman
We had a brief conversation about this over breakfast when we try to put our thoughts in order and introduced ourselves. And I'm the only member of here in the state court. So I guess it falls to me to ask a question of this nature. In the ABA journal in July.

There was an article commenting on

individual litigants seeking their constitutional rights as it were in the state courts as opposed to The federal system and, and being successful some of the time, and but without giving examples I'm sure some of the practitioners are familiar with with those matters in particular, but I guess my question would be when the outcome appears to be different in the federal system from the state system, Is it because of constitutional provisions of the between the federal and state courts are so different? Or is it really not a therefore not especially a conflict and outcomes, or is this healthy federalism or are the this should this state court judges be getting a message?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I think it was possibly about eight years ago, that Justice Brennan gave a speech that was been published, suggesting to disappointed litigants in federal courts and some areas that maybe they should pursue claims more actively in state courts. If federal courts were going to be hostile to certain claims, now, I think we have seen some of that come about, you know, lawyers are a very creative bunch of people. And they are out there to try to pursue their clients and press maybe their own interest to I don't know, in whatever Avenue they can they want to win. They want to get some relief. And if they're not going to get it in the federal court, maybe they can build a case in the state court system that will work. And I think we've seen some of them in effect. I guess that's all right. State courts are active on behalf of State sovereign entities. Battery entitled to function within their area and to define what is recoverable by litigation, according to that states law. Now, it's a little awkward when the language being employed in the state constitution is identical to that in the Federal Constitution. And yet you might have Justices of the Supreme Court of the United States taking the view that the Federal Constitution using that language means one thing, whereas the state court justices you looking at this very same language might conclude that it means something else in their state. But I think we can live with that kind of state sovereign discretion. And we are living with it and we are seeing some of it so I'm not unduly troubled by myself.

Byron White
I'm not troubled by it either. must state unless the state court says, well, we're interpreting our Constitution, this constitution provision, this the same as the Federal Constitution we're following. And then we have a bit of a little bit of a problem or if or if, if a state court says, Well, we've got the same Fourth Amendment provision that the Federal federal has had, but we're going to construe our provision narrower than the Supreme Court has been destroyed. Of course, they will go.

Lindsay Miller Lerman
Well, the easiest case is obviously a discrepancy in language, I suppose.

Byron White
Well, I don't know. I think the state courts have the I think the state supreme court justices know what know what their powers are, and Win lose or draw whatever the language is if they want to, if they want to give more protection to their citizens under their constitution than the Federal Constitution gives, I think that's their business.

Nicholas Spaeth
I'd like to ask a process question because there are all kinds of lawyers out here, some of which have been in front of the court, some which may be there. The court gets a lot of information for two sides of case part of it comes in the way of briefs, which are submitted by the party, sometimes by Nietzsche. And of course, there's oral argument and I'd be interested in your views both of you, but what's the relative roles of each of these mediums?

of information and what do you find useful?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I think we learn most of what we learn about a case from the briefs that are filed by the parties. You cover a lot more ground in those briefs than you can in a half an hour of oral argument where you're interrupted constantly by questions. So the the major portion of the information is going to be conveyed by those briefs. Now we get a large number of Atticus briefs. And most cases that we accept for review result in the filing of at least some Amoco scrapes. Now, we read those and I don't think a majority of them are particularly helpful but now and then you will find some especially helpful material and an amicable breakup so we don't they're not read them. Once in a while, you can get some some extremely useful information. Now, I don't know how the other justices operate. We operate pretty independently, but I assign a law clerk in my chambers to do additional research on every argued case, no matter how good the briefing, I want the law clerk to at least go through the process of discovering what relevant law review articles have been written on that issue. And whether there are some good text writers who have touched on that particular issue. And I want to know what has been said, and what is being said about that given issue. And I like to talk to my law clerks about the argue cases and discuss with them after they've read the briefs. And I have what we think are still probable some areas and occasionally, despite pretty good briefing, I will conclude that there's some question I have that I think needs still further research. And again, with the Health with the law clerk will try to do some research and dig out the cases on some points that I think might be important to us and deciding it and which might not be adequately covered. And we do learn something at oral argument. I don't think any of us would like to see the court give up oral argument nor what I like to see it reduced. Been below the hour that we now have there are some cases when I wish it were a little longer. But the court tends to use that time to ask questions of the lawyers and some of our members are former law professors and they haven't lost their technique, the basketball questions, I guess, but it can be helpful to press the lawyers on how their theory would play out in different circumstances, because they're asking us to the letter gums are coming to us and saying adopt a project. Killer rule of federal law here. And the court has to be very much aware of how that rule will play out in other situations that are bound to come up. So we are concerned about the hypotheticals.

Byron White
I don't have a great deal to to add. I agree with Justice O'Connor that, that the briefs are all are all important. And of course we by the time we go on the bench to hear oral argument, I think we all of us have read the briefs we know about the case. And we don't have oral argument to to give the give a lawyer due process and just to have you make a speech, we want to use oral argument to help us arrived at decision and we do and that is one place. We're all of us is working on the same case at the same time. And I wouldn't think at all that we would, it would be hapas half as valuable to lock us up in some empty room for a half an hour. And just to think about the case, we really get a lot out of oral argument, I wouldn't think of giving an oral argument. I know that and I worried quite a bit when we decided that in the early 70s, that because of Dr. Pressure, we ought to hear some more more cases than we could. And so we we cut the argument they are ordinary argument time before that time had been an hour on the side. But we had had what was called the summary docket for years on which we had put a give a half hour on a side to sort of a little case you thought you could wrap up in a blue ribbon. Well, during the 60s, we put more and more cases on that docket. And it became apparent that lawyers could really tell you in a half hour, but they used to take an hour to do tell you, at least for most most cases, so we switched from a from a half hour on the side to a half hour on the side, which meant that we would hear 12 cases in three days every week, instead of eight cases in four days. And of course, within five or six years, we were up to around 150 cases instead of a state of instead of 100. But that oral argument is still

Nicholas Spaeth
a very important matter. I'd like to follow up with just one brief question, which is,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
well, let me come back to this before we leave it. Okay. Now, you were quizzing us about the use of footnotes. I think it would be Be kind of interesting to know, how lawyers decide to write their briefs and why we get so many footnotes and the briefs. It's very interesting. You know, I love to get a brief that's well written and well organized them that I don't have to wade through 99 footnotes to find the answer to the most pressing question. And I find very often some lawyer in a break, faced with a really tough question will bury a reference to it in footnote 99 or something, and it drives me up the wall. Now how

Lindsay Miller Lerman
about that man jump in here very briefly, only to say that the last time I looked in the rules of our court, there's a rule against footnotes, so I'll stand it this way.

Nicholas Spaeth
Well, as the only member of the bar here was the bench I guess I'll I'll have to plead guilty. The whole profession, but it was about the

Unknown Speaker
I think it's the law professors fault and look at the news. Yeah.

Unknown Speaker
There's, there's proliferation

Nicholas Spaeth
I was going to ask both of you in the same vein, whether you thought that oral argument, it actually changed the result in any case in your memory, and I asked that against the background of having lost my last case there eight to one.

Byron White
every term every term, they'll be one or two cases that I think I'm going to vote one way. And after argument, I decided that the other way and strangely enough, when you get to conference, you'll find that some others were in the same boat. So. So it may be, you may have it may be very long odds against doing that. But nevertheless,

some of you have been lucky.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Is that that's absolutely right night. I think I've heard every one of my colleagues say at some point, well, that oral argument really changed my mind. So don't give up on the oral argument here. It can make a difference,

Lindsay Miller Lerman
if I may. Is it do you think or is there any pattern This may it because you the fact pattern is pin down or because the legal arguments

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
are promoted differently, because you had a chance to explore how the theory they're espousing will play out. And all of a sudden, the weaknesses or the strengths can become more apparent than they were from the brains.

Byron White
I don't,

you know, we're specialists in federal law. And by the time that case gets to us, who did what, to whom and when the historical facts have been settled. And I don't think it's going to do lawyers very much good to argue the historical facts in our in our in our court, maybe in the court of appeals, or in order to a jury somewhere but not to us. So. So if if if oral arguments going to change our minds, it's for the reason says

Unknown Speaker
about the moving from the oral argument to to the conference. Can you comment on on how vigorous the debates are and how much they changed from the nature of the case changes the length and intensity of the conference debate. And this has that changed over the years to?

Byron White
Well, when I was there is a lot or back in 1946 and seven conferences lasted a long time, and I heard certain justices held forth at great length

so long that some other justice would walk out, but

I don't

that hasn't been true since I've been on the on the court. The length of time compliment conferences, come and go but I think All any justice he wants to say anything. He takes his turn or her turn. And you're not supposed to interrupt and some somebody else and debate them. But if you want to, after the everybody's had his or her turn, you want to talk some more you talk some more. But I said, I've always said that the meat is cut in the writing, rather than then talking around the conference table, the conference, certainly we take the boat conference, and we are close enough to a decision that the senior justice on the majority side thinks he knows how the case is going to come out. And he will assign it to one of the justices on the majority side. And usually that's the way the case comes out. But not all,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
you know. My presence on the court hasn't been so long that I can still Remember with complete clarity, the most exciting moment of many exciting moments and connection with my nomination and approval and going on the court. And it wasn't really the first time I sat and listened to an oral argument. It was going to that first conference discussion and sitting around that table and being part of the nine people there to decide some very important issues of federal law. And that feeling of all in attending the conference, stays with me today. It is by far for me the most interesting time that I spend The court it's going to those conference discussions. And even though we get to know our colleagues pretty well, and we, as you prepare a case for conference discussion, and I think we all do prepare, it's a little like going, in my view to an oral final examination, you have to gather your thoughts with some care before going in there. Because you were expression, abuse has pretty serious consequences for you. And as much as you might be asked to write an opinion, either for the court or for the dissenting justices, based on what you said at the conference discussion, so this is not an idle discussion. And even today, I can't go in there and predict with any great degree of accuracy how my colleagues are going to vote on a given case. There are lots of surprises. And they will surprise you at conference. And it's so interesting to see how the justices come out on. And I thought the conference discussions might be more

Unknown Speaker
a time

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
of an exchange directly of opposing views and a discussion across the table. But when I got there and saw how the process operated, it is, as Justice white says, it is the case that we just go around the table and each expresses their views and can speak as long as they want. But the real nitty gritty discussion takes place in the process of writing the opinion drafts now that's where the case is made or lost. And the writing of opinions can alter views that were expressed at con France. And so the real hammering out occurs in the process of the opinion writing.

Nicholas Spaeth
Justice white mentioned a minute ago that the opinion gets opinions get assigned by whoever the senior justice isn't the majority. As far as I know, that's an unwritten rule as as the rule of four and what struck me about working at the court was how many of these little procedural rules that were very fundamental the operation of the court were unwritten? And I wondered if either Would you care to comment, but how they were developed? And if if they ever change and,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
well, justice, fine, would know a lot more about that than I would say, here goes the institutional memory.

Nicholas Spaeth
He was there with Justice Marshall from the beginning.

Byron White
Yeah, well, I wasn't there. 1925 either, but I think by 1925, they did have they did have some degree of discretion, but for 1925, as I recall, but not much. In the vein, they were supposed to take every case that disappointed that against one of them to take. And the court got very far behind. And so the justices went over to Congress and said, Look, we shouldn't be used as a court of error, we you should give us discretion to pick cases that are important to the development of the federal law. And Congress agree. And they then said in the hearings, that to make sure that we don't that we don't ignore too many cases, we will grant cases or plenary consideration if there are at least four votes to for granted. And that's been the rule ever, ever since. Although there's some arguments about when the rule of four is applicable, which and every now and then we get into real estate crap

in the court has never been that rule before. Is is applicable.

Unknown Speaker
There are a lot of other

Byron White
lot of common law rules around the court knows anything about except the justices and real court watches, I guess. But I don't know. it's ever been any other otherwise. And then

and that the senior justice on the majority side that signs

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
that the Chief Justice will make the assignment even though he might not technically be senior he is by virtue of his office.

Byron White
Oh, yes. Oh, sure. Sure. And the chief justice, by the way, is, is like every other justice is is certainly in the majority, much more than he is in the minority. So he, he assigns by far the the, the greater percentage of the game

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Now I want to point out some very significant change that's about to take place as a result of justice White's decision to retire, it will now be possible for me to assign an opinion in theory. I mean, this is a big shot. And I don't know if it'll ever work out that way. But anyway, it's it's now going to be technically possible. And there was one other very momentous change as a result. When we have the formal court photos May. Four justices are seated on the front row and five are standing in the back and I want you all to notice on the next photo, I'll be seated. Quick, just assign that I'm really getting old

Nicholas Spaeth
I think the example that comes to mind, that's the hottest issue, at least in the minds of many Americans in terms of temporary legal issues is abortion, where I know justice White has continued to dissent. I don't know what your views are on the issue of pro life or pro choice, but I know, I know what your constitutional views are. And that is a case it seems to me where there has been, people continue to write on both sides of it without really giving up.

Byron White
that'll probably be the case.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, and it's all it's also a case and an issue where some justices arriving at the court after the scene, so to speak, chose to add here, in large part to precedent rather than go back and reinvent the wheel.

Byron White
It is interesting to note in that regard to that

Justice Scalia,

as I understand them, was not very enthusiastic to say the least about the dormant commerce clause. But he's a man he has made his partial peace with the dormant commerce clause. He just wrote last term that that he still disagreed in some in some respects. And others. Others people thought the hands against Louisiana was absolutely wrong under the 11th, the 11th, the missing that misinterpreted the 11th amendment. But the justices I don't hear any more any, any big ruckus about the hands against Louisiana.

Unknown Speaker
I think that to me, this is a related question. I still remember as a young man going from a court of appeals log Clerk to a supreme law court and law clerk. And being struck by the magnitude and difficulty or AWS, Justice O'Connor said, of making these decisions with nobody grading your paper. I mean, you are the final word. And it seemed to me that that any human being has to retreat into some form of self discipline. I don't know if its original intent or plain language, different doctrinal ways of doing it. And I wonder if you could comment on whether you feel a need for four devices at that time? And did they become second nature? If so, are you are you constantly reminded of the problem?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, you know, different justices have different views of how their role should be carried out. There is no doubt about that. And we have kind of an interesting division on the court of sorts today. About statue interpretation. And we have members of the court who believe that we should never resort to looking at legislative history. And we have other members of the court who routinely will look at legislative history if we are in doubt about the meaning of a particular statutory provision. And these are just people who have specifically different views of the role of an appellate judge. We have members of the court who if possible, would like to draw a clear bright line and every case and a good technique for the lawyers coming to our court might be to say, Gee here, I'm offering you a clear bright line.

Unknown Speaker
I think

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Excuse me, we probably would all like to be able to draw clear bright lines in more cases than we do. But in my view, not every case lends itself to the development of a clear, bright line. And we've ended up in some areas of necessity, adopting a so called balancing test. As I'm sure you judges out there are aware on occasion, but people approach the task differently as you as you've observed judge Logan and you may find yourself addressing on the court of appeals precisely the same kinds of things. What, what what is going to guide you? Are you going to try to seek a clear bright line and every case or do you think they're somewhere you can't do it? These are the things you have to The rest of the way.

Nicholas Spaeth
We've got about 15 minutes left, and I'd like to allow the audience an opportunity to ask a few questions. So if there's anybody like to stand up to the mic and ask a question, I'll recognize them. ask you to introduce yourself first.

Yes, sir.

Byron White
Magistrate Judge Tom talking from Omaha, Nebraska. I'd like to ask each of the justices for their views pro and

Nicholas Spaeth
con on televising your oral arguments.

Byron White
Well, that issue has been before the court good many times. The presses asked asked us to open

to open a court TV. I've always voted against it. I would.

I just don't

Nicholas Spaeth
think it would contribute

Byron White
a whole lot to our proceedings. And I, I not sure that it would be

so educational to the public.

That's been the view of the majority of the justices so far, but not certainly not unanimous. And I suspect, I suspect that as time goes on and new justice has come on the court, say from the state system or just lawyers on who were familiar with TV in the courtroom, I wouldn't be a bit surprised that sooner or later, the court only made up of justices who say, what was wrong with those old guys anyway?

But I don't know I don't know. And I, I also

am very pleased that I can walk around Washington DC, up and down the street. And very, very seldom Will I ever be recognized. Which wouldn't be case, but if there was TV, but that's just a very selfish matter.

Nicholas Spaeth
That's probably not the case for you. Justice O'Connor, however,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
probably isn't it but I worked in a state court system where we allowed televisions in the trial courts and in the appellate courts. And for the most part, they they, the media didn't often want to come in to the appellate court. It was a rare case when they did. Of course, if the Supreme Court opened its doors to television coverage of arguments, I suspect, they would all be covered in in some way. Without a doubt. It's my view that eventually, we will probably have TV coverage of supreme court proceedings but as Justice white notes, it probably won't be for a good file. I do not think that I want to force any of my colleagues who have strongly opposing views to subject themselves to media coverage. And unless there's a pretty strong consensus among the nine that it should be done, I would not be one to vote for a change. And if there is a strong consensus that we should go that route and virtual unanimity on the subject and I'll go along, but I think it's going to be a while.

Unknown Speaker
Now, my father was a journalist. So I've always been fascinated with the interaction of journalism and the law press in the courts. How do you to think the print media do and covering the court's decision, generally Okay, or way off base.

Byron White
I think they're better I think they're better than you. BGM not not that,

not just because of not just because

they're just more of them, but I think they they're more good reporters covering the covering the court, but they still can make some real moaners.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
But the print media does a better job than the TV media in court coverage. I think largely because TV coverage tends to be the 32nd sound bite. And time and again, TV coverage of court decisions, whether it's a decision of your court or of ours, will characterize it as though the judges had made a policy choice. Judges prefer to uphold death penalty. or something of that sort as though all judges do is set up there and and make policy choices. And that's unfortunate, because it's seriously misleads the public and gets away from any notion that there is precedent out there and that justices and judges are trying to adhere to precedent and follow a rule of law that has some basis rather than acting as elected legislators. And that's my complaint with the coverage that we get in in at least the TV media and sometimes in print media headlines,

Byron White
as well. I just might add, people seem to forget that about half of our work is purely statutory work, no constitutional issues, and our job then is to try to find that What Congress man with those words they they use? And if we can find out we are we we have to enforce that law unless it's unconstitutional, even if we think the law might be, would be is a silly law, as sometimes some of us are bound to thing. But and the even the print media sometimes forgets that. We're not that we're trying to enforce Congress's intention rather than our own.

Nicholas Spaeth
Actually, I think the worst rap you get is when you decide not to take a case. And it gets reported as if you've had a firm as if you reform the case, or there's been a gentleman standing for a long time. Oh, yes. Thank you very much. Bobby McDaniel, Jonesboro, Arkansas.

Byron White
My question relates to the progression and the balancing act that Justice O'Connor talked about about the professional law. years ago when there was not solicitation advertising and so on then one came Bates and Then the quote quarter foundry locusts. Are there any cases pending or where search been granted? Or is the court going to address the issue of free speech versus professionalism of law? there any developments in that line?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I don't recall any case in which we granted, sir, that addresses attorney free speech issues for the next term. Maybe justice white does I don't recall one and we had a case, last term involving state regulation of accountants that turned on the same basic sort of analysis and of course, I've been out of step with a majority of the court in most of these cases dealing with attorney advertising so I'm probably the last one you want to ask I might get worked up about whether they

Nicholas Spaeth
I don't see anybody else standing and I know both Take one more than

Unknown Speaker
the media has observed that there's been an ink I'm sorry, my name is Frank Noel and Magistrate Judge from Minnesota. The media has observed that there's been in recent years an increased level of direct personal attacks between the justices in their written opinions and an increased level of hostility expressed between yourselves. I was wondering if one if you agree that that is in fact the case and to whether or not it influences you or are you sensitive to it or does it influence the way in which you approach the next case with the discussion with the other justices on the court?

Byron White
I

I've developed a very thick skin and i don't i think that kind of writing is counterproductive.

But I try as much as as hard as possible. Well not to have it make any difference in dealing with that

particular justice. As a matter of fact,

whatever the writing

sounds like, or looks like,

we really get along pretty well. We like each other and we we have a good time with each other. We don't think we're, you know, got a lot of hostility going around. There's just somebody style to write strongly. Back when I was a clerk I hated to go back to too far. But the atmosphere around the court in those days, it seemed to me was a lot heavier than it now is, I think we get along very well and I, I hope the public wouldn't believe that we do.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I heartily agree with that. statement and what tends to happen is that press the press will read opinions and sometimes there's pretty strong language as you pointed out in your question. And they will take that as a reflection of some kind of personal animosity or abuse and it really does not exist. That's a false impression. Another reason why I particularly hate to see justice fight leavers is because he never resorted to the use of personal invective in the writing of his opinions. I never saw a single time. In the years I've been there, and I admire that greatly, because you can make a point and make it effectively without resorting to necessarily strong language, that maybe it's in the academic tradition to express views Strong life, I don't know.

Nicholas Spaeth
But certainly nothing compared to the way nothing compared the way we talk about each other in the political circles just I want to thank the members of the panel, Judge, Judge Logan. And of course justice is white, and O'Connor for sharing their valuable time with us. I know all of you enjoyed it and I want to thank you all for listening so attentive Flipboard

Unknown Speaker
podcaster Meyer, former member of congress and now chairman of a commission looking at judicial discipline and removal. Let's begin by talking about the commission. What is it Why was it formed

Unknown Speaker
Royal Commission