By Justice Sandra Day O'Connor

Keynote address at "The Presidency and the Supreme Court" conference

November 11, 2007

Keynote address at "The Presidency and the Supreme Court" conference
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Location: "The Presidency and Supreme Court" conference

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Transcript

(Automatically generated)

Thank you. Thank you very much. That was a wonderful introduction. You even found things I didn't know. What is this nixon tape business? I have to find out about that.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
yeah. I'm going to have to find out more about that. Now, I'm so glad to be at hyde park. It is my first visit to this place. And I know part of the wallace family, and I think david douglas is sitting right there. And they helped make this facility possible, chi think is marvelous. I'm so glad to see that. Tomorrow I look forward to seeing the other parts of hyde park in the daylight hours. And my parents were cattle ranchers, as you have heard. Many of the cattle ranchers, at least in the southwest did not approve of franklin roosevelt's policies at all. Quite the contrary. They didn't approve of eleanor roosevelt either. I'm not sure why, but they didn't. And when I was a child, we didn't have a a school near the ranch, and I was sent off to el paso texas where I lived with a grandmother to go to school. And went to this school for girls. The head mistress, dr. Lucinda temp lynn invited ell minor roosevelt to come to the school, and eleanor roosevelt accepted. And all of us were supposed to clean up and be out by the flag pole, waiting for eleanor roosevelt to arrive. Ki remember to this day all of us being out there waiting and here -- I did not dare tell my parents. [laughter] and of course I realized I couldn't possibly like her. And so we all stood out by the flag pole, and the black car drove up. She got out of the back, and she had an old black slouch hat thing on. And she had an ill fitting dress that came down to her ankles, and kind of high shoes, and around her neck was a fox fur. I had one of my grandmother's. The fox's head is biting the tail. It hangs by the feet. Not a beautiful feature is any event. She got up and started to talk and visit. And I realized, this was a woman who had incredible charisma. Within 10 minutes, she had charmed all these ignorant little girl who were gathered around the flag pole, including this one. I will never forget that day. She made such a wonderful impression. I have met very few people in my life, a few, like nelson mandella and eleanor roosevelt, who immediately on meeting them, you know they are special. She was. So I never met the president, but I remember meeting her with much pleasure. And I don't know what a keynote speech is. I don't like the term. I never know what you are supposed do with a keynote. This isn't a keynote. This is just a few remarks on the topic of this conference, chi think is marvelous. I'm so impressed that a number, if not all the presidential libraries, have cooperated to make this possible. You have marvelous speakers. You have a terrific topic. I adore presidential libraries. I visited a lot of them. And it's so much fun to go. And this is a great idea to gather together and focus on one topic of great interest and have speakers as outstanding as those you have assembled for this I'm glad to be part of it. And to be here. And in thinking about what I might say, I thought about the issues and conflicts between the executive branch and legislative branch which we are seeing in our country right now to an extraordinary degree. We are in the most amazing time. And if I understand correctly, you might even be addressing some of this next time the libraries get together. It is a remarkable time to be considering the issue of separation of powers and what it means in time of stress or work. And we have some very challenging cases at the supreme court, and have had in the last few years. There are some on the docket this term.

And I couldn't help think of one particular history figure of note, william howard taft. And the stories told that mr. Taft found himself stranded at a small country railroad station. I don't know if it was up here very or where. He was told that the express train would stop only for a large group of passengers. And taft wired the conductor, stop at hicksville. Large party waiting to catch train. [laughter] when the train stopped, taft got on and then he turned to the confused conductor. You can go ahead now, he said. I am the large party. And we laugh at the story because we remember that mr. Taft at his heaviest tipped the scales at over 300 pounds. But as the 27th president of the united states, and as the 10th chief justice of the united states, he also was the only person ever to have tipped the scales by holding both of those incrediblely large offices. Experiencing firsthand the large responsibility of heading two of the most significant institutions in the free world, his time in these two roles put him on two sides of the same constitutional coin. Indeed, our remarkable constitution recognizes the individual largeness of these governmental bodies, while ack -- acknowledging their times will collide and nearly always manage to carry out the will of the majority while safeguarding the rights of the minority. So tonight I want to spend a few minutes to reflect on some moments in history in which these two large institutions, the chief executive and the supreme court, with large constitutional obligations, have intersected, overlapped and even clashed. A look at the dynamic between the two dells volumes about the genius of our constitution. . Presidency survive in the collision of two larger-than-life personalities, we do not have to travel very far into the early days of our republic. John marshall n. Thomas jefferson for any and -- of john marshall in the thomas jefferson were involved in master relationships. There were not well managed. It planted the seeds for an all- out war on the proper role of the judiciary. It said the trajectory of constitutional law as we know it today. Jefferson almost was not our third president. He came to the post only after the house of representatives before an electoral time vote in his race with aaron burr. Marshall almost was not our fourth chief justice. Receiving the nomination from john adams only after the first choice declined reappointment to the supreme court. Once they brought them to their respective positions of authority, and they came to blows in ways that could today's climate of political acrimony to shame. Early in his administration, jefferson tried to have john marshall impeached. He accused him up for behavior. And jefferson said that the law is nothing more than an ambiguous text. He spoke vehemently of his bitter disappointment on his own appointees to the supreme court. He called them lazy and week for not standing up against the chief judge marshall. Marshall, in turn, labeled jefferson totally unfit for the presidency did jefferson called the chief justice a man of blacks on the manners and profound hypocrisy -- the chief justice a man of lax in manners and profound hypocrisy. History teaches us that it was marshall's decision in a case and that might as well have been capped some martial vs. Jefferson it gave the chief justice his least of this, but perhaps greatest victory over president jefferson.

In the watershed at 1800 election, Marshall's federalist party lost control of the executive and legislative branches to jefferson's republicans. In an effort to retain some presence in government, adams decided to pack the judiciary on the way out the door. President adams appointed marshall, who was then secretary of state, and congress passed a number of pieces of legislation to restructure the current system. It provided the lame-duck senate with lots of new judicial positions to fill. Adams filled them, or thought he did, through a series of midnight appointments. But jefferson fought back. When he took office, he refused to deliver the commissions of some of those appointees carry it with mr. Marshall did not give his commission, tried to get a court order compelling the administration to deliver it, the case made its way to the supreme court. Chief justice marshall, to the surprise of many, denied the order that would have forced his nemesis to issue the judicial commissions. It came with a silver lining to himself. The order was denied on the grounds that the part of the judiciary act that had given the supreme court the power to issue such orders was contrary to the constitution. Writing for a unanimous court, marshall declared that courts, as well as other departments, are bound by the constitution and more importantly, it is emphatically the province and duty of the judicial department to say what the constitution means. In one fell swoop, marshall gave up a small power that congress had conferred on the court and took an extent -- and took, in exchange, the ultimate constitutionality of all acts of congress challenged in court. Despite the vehement act, this bold assertion by john marshall has survived as the official answer to this day. The lessons to be learned from the story of jefferson and marshall are too many to recount somenine tonight. It is the story of large institutions competing in an economy. Perhaps even more significantly, it is a story that begins with a distinctively human a thread that we will see will come throughout all of the historic episodes that I will mention tonight. The judiciary, and the presidency are inhabited by real people with real emotions, real foibles, and a very real if sometimes conflicting commitment to do what is right. They said an historic moment of interaction between the presidency and the judiciary of stars president abraham lincoln and chief justice roger taney. It represents one of only two times that a sitting president has deliberately defied a direct supreme court order. In the early days of the civil war, the fragile american nation faced serious threats from within. The southern states have broken away. European powers were poised to intervene, and to divide our young nation prominently. And the war posed another sort of danger of, a danger less obvious than columns of soldiers marching through the countryside. But more insidious to a nation conceived in liberty. A government at war might use extraordinary powers to stamp t political opposition.

In april, 1861, a trainload of union soldiers passed through baltimore en route to washington. They were greeted by an angry mob of southern sympathizers in baltimore. They had to fight their way across that city to another train station where they're trying to washington d. C. Waited. Later that night, local authorities who favored the south, burned some of the bridges between the two cities. They cut telegraph lines between baltimore and washington. They claimed that union soldiers might come back and look for revenge. Congress was out of session. President lincoln found himself in a capital city with a rebel army to the south and a cessation mob to the north. As commander in chief, he authorized local military leaders to suspend the writ of habeas corpus along the railroad line. This was from washington d. C. To philadelphia. Essentially, this meant that the army could arrest civilians without getting a warrant from a court for without probable cause to believe a crime had been committed by the person arrested, and without providing the speedy jury trial of the constitution guarantees. A member of the maryland legislature have been recruiting rebel soldiers. He was arrested by a union general and hauled off to fort mchenry in baltimore harbor. This is when supreme court justices still of the circuit. They were hot on their horses to serve as federal circuit george's around the country when a request was filed with a local circuit judge, he went to none other than chief justice roger taney who was the circuit judge for that location. Was no friend of the republican administration, and when he received the petition, he ordered the commander of fort mckinley and to bring him to his court in baltimore. Instead of complying, the commander sent back an aide at bearing the message that the president had authorized the colonel to suspend the writ of habeas corpus. At this, as you can imagine, since she justice taney. He wrote a fiery opinion. He said that only congress has the power to suspend habeas corpus. President lincoln did not publicly responded to thomas opinion -- respond to his opinion. He noted that in the confederacy, the constitution itself was being ignored. Had he not acted when he did, washington d. C. Would have fallen into southern hands and there would have been no congress to act in response to the rebellion. Lincoln famously ask if all the laws were to go on executed. -- doe and executed. -- go unexecuted. I am not want to wade into that debate tonight, but it suffices to note that in march, 1863, congress was in session and gave president and kim expressed legislative authority to suspend the writ. It removed any constitutional obstacle to the detention of any seveners. I think that to his immense credit, he did not use the authority he asserted to trample on the civil liberties that the writ of habeas corpus was meant to protect. I think recent studies have made it clear that president income did not try to suppress political dissent, he understood that a democracy grows stronger by allowing people to voice their opposition to government. He appreciated that the strength of the union lay not only in force of arms, but in liberties that were guaranteed by the open and sometimes heated exchange of ideas he, no doubt, would have been pleased to know that after his assassination and the conclusion of the war, president lincoln's predictions that habeas corpus would quickly be reinstated came to pass. In lincoln's words, what constitutes the work of our own liberty and independence is not our frowning -- the strength of our disciplined army, but rather the love of liberty and the preservation of the spirit which prizes libertiney to man in all lands. This can be seen as a moment of large respect for the rule of law by both the president and chief justice. The constitutional debate this part continues even now. I think we can appreciate the character of the two men behind the story. They loom large even today.

A third well on a called of the intersection between to the large spokes of the influence of the judiciary and the presidency is contained in the story of president franklin d. Roosevelt's court expansion plan which you heard a lot about the current headcount of justice this isn't engraved neither in stone or the constitution. The history of the changes was put in too little perverse to jog the memory. Congress decided to fix the number of justices at six. Congress' plan on a change to 5, but the six remained very much alive. 7 hide judges all and a lime, to more added, and that may 9. 9 hide judges were sitting when lincoln made them, and even can hide judges there is a day. When congress got through there were only eight. A high judges who would not resign. President grant brought the number back in mind. Would injustice feel like the -- of the last line of this little verse marks the court packing plant of franklin roosevelt. In citing the heavy workload and declining age, or advancing eight I should say, of many of the supreme court's sitting justices, president roosevelt suggested the increase that would have raised the number to 15. However, I think historians have long believed the real reason was that he was more than a little annoyed that the justices were giving a thumbs down to so much of his new deal legislation. He was not imagining things. In the 140 years between 79 d in 1930, the court had overruled only 60 acts of congress. -- between 790 -- between 79 and 1930, the court had overruled only 60 acts of congress pr. On black monday, 1935, the supreme court struck down three pieces of legislation all at once. President roosevelt feared the court would dismantle his new deal altogether. His proposal was to get congress to pass a bill that would let him appoint a new justice every time a justice turned 70. Coincidentally, six members of the court were over 70 at the time. There was a cartoon that was published that showed what people thought the president was doing. It shows the nine current justices sitting on the bench, along with six president roosevelt look-alikes. Finally, senator wheeler of montana obtained a letter at his request from chief justice use. As senator wheeler recall, you couldn't hear the silence she just as she's struck down in arguments offered by the president and his supporters. He detailed how the court was fully abreast of its work, was not rejecting an important cases to keep its dockets clean, and his last argument was the clincher. He said that an increase in the number of justices of the supreme court will not promote the efficiency of the court, is believed it would impair the efficiency, so long as the court acts as a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and decide. The present number of judges is adequate for the work of the court. President roosevelt's court packing plan was dead. And so the court survive what many viewed as one of the biggest crises the court faced in its history. The court emerged larger in influence if not in numbers. It was much more keenly aware of its sometimes tenuous but always interesting relationship with the presidency. Now, perhaps the most significant story to tell in terms of legal precedent is what I say for last. It takes place in april, 1952 during the korean war. It features president harry truman and a steelworkers union in justice robert jackson. And jackson had a law clerk by the name of william h. Rehnquist. At this critical time in the war effort, the steel industry and the union had reached an impasse in their negotiations. There was a looming strike by more than 600,000 workers and it threatened to cripple the production of weapons and, president truman's isis, threaten our troops. President truman had worked to keep the strike at bay and he turned to his advisers for counsel. The recommendation, he should seize the steel mills, forcing the companies and labor to return to the bargaining table. So, president truman took that advice, and just hours before the scheduled strike, in a press conference, president truman look into the camera and announced on national television that he would order his secretary of commerce to take over the steel mills and keep them running. The president's advisers had not counted on the supreme court entering the fray. Historical documents now tell us that they counseled him that the odds were low that the judiciary would involve themselves in such a hot-button issue. The short-lived seizure would serve its designed purpose. But what resulted was something much larger. An act that would forever impact in the american presidency. It produced a watershed supreme court decision, defining the limits of the scope of presidential power. It began with the u. S. District court judge david klein, who, to the surprise of the administration, declared the seizure unconstitutional. The judge said there was a complete lack of authoritative support for a president sha ial see it. The u. S. Supreme court heard expedited arguments for it in its decision, it echoed the district court's review of the president. He had indeed exceeded his powers under the constitution. Writing for the majority, justice hugo black rejected the administration's argument that in a time of war, the president could exercise his emergency powers with so broad a passion to be almost boundless. But the most enduring opinion in the case was the concurrence pened by justice jackson from jamestown, new york, just up the road a little way. And by the way, the last justice who never went to law school. He didn't even graduate from college. And he was educated in the public schools of jamestown, not too bad, right? well, justice jackson, his opinion in that case is very insightful on the issue of presidential powers. And that's the real legacy of the young stoun case. According to recent writings, president truman never one to keep his feelings masked asked a top advisor to list on a single sheet of paper the reason why the court's decision was wrong. The president took the sheet with him to a dinner hosted by justice black at his home after the release of the decision and all the justices had been invited and were present. And it was a sort of peace offering by justice black to the president. And the first line of paper we're now told read as follows. The supreme court substituted its judgment for that of the president as to the seriousness of the sensation of production of steel at this time. Now whether president truman actually delivered that written message is unclear, but it was reported, though, that at the conclusion of that dinner, president truman turned to justice black and said, I don't like your law, but this is mighty good bourbon. [laughter]



Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
when the founders crafted the masterful constitution that survives to this day, you think they could have imagined the drama of those stories I've just related tonight? and could they have anticipated the human dynamics and battles of will would pepper for centuries to come and change the course of history in such fascinating ways? maybe. At a minimum, the framers foresaw there would be times of crisis, real and perceived, international and domestic, personal and political. And that these times would inevitably put the president in the boundary-pushing role of defining his own powers and the courts in the precarious role of reviewing the president's acts. They knew because common sense dictates it that institutions that are large in power and large in their impact inevitably have run-ins that are large in scale. And large in their ultimate consequences. But they also trusted, the tramers did, that the balance system of government that they had created would, at the end of the day, provide a larger perspective. They knew that the people of their fledgling nation could be counted on to choose their leaders wisely, at least that's what they thought then. I don't know if we do now or not. We'll see. And they could be counted on to respect the roles set out in the constitution for them. And as we face the trials we do today, and we have some major ones with separation of powers issues, I think we can find hope in the dignity with which the presidents and the judiciary have emerged from either the rockiest episodes of the past and maybe when this speech is given again or this subject is addressed again in a future presidential library seminar, it will be remembered that at this time, the tasks before us are large. They really are. But it will also be remembered that we, like our forebearers are probably strong enough to.