By Justice Sandra Day O'Connor
Landon Lecture at Kansas State University
February 16, 1988
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Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Thank you. Thank you President Wefald and Chairman Slawson, students and friends of Kansas State University. john and i are absolutely delighted to be here and then happen with you at the university. And you're showing some very beautiful weather to us which we like do much better than in Washington DC. And of course this is the home state of to distinguish senators and one of them senator Nancy cast bomb has encouraged me for several years now to try to accept the invitation to deliver the lecture name for her father. Now I confess that I have one keen disappointment and connection with this visit. I accepted your invitation too late to meet Mr. Landon who passed away last year. And I wish that I had had the foresight to have accepted a couple of years ago and have the chance to meet him. He, through the lectures has brought some wonderful people to the university. You don't have to go to Washington to hear the nation's leaders they come to you right here in Manhattan. It's an interesting time around the nation, with the presidential primary elections taking place, and international treaties being debated in the Senate. It's also a time when we have witnessed the nomination and confirmation process at work in selecting a new justice to fail our supreme court bench and when I returned to Washington, DC this week, on Thursday, I will participate in the ceremony, during which Justice Kennedy will be installed to round out our bench again at a full nine. All of us who watched the judiciary committee hearings on judge Bork and judge Kennedy learned considerably more about some of the legal issues addressed in the federal courts. And we learn something about the process of selecting justices for the Supreme Court. Today, I'm going to discuss a bit of history that profoundly affects that process and explains how it is that our constitution came to provide for an independent federal judiciary selected by the president with the advice and consent of the Senate. As we all know, 201 years ago in Philadelphia, 55 delegates from 12 states at the Constitutional Convention, set their minds and their hearts to work. In order they said to form a more perfect union to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. The delegates told us their purposes at the very start of their final draft of the Constitution. If the order of their list of purposes means anything, establishing justice was particularly important, it ranks second only to forming a more perfect union. Many things are involved, of course and the effort to establish justice, enumerating rights possessed by every individual setting standards for holder to holders of public office and placing limits on the powers of government are just a few examples. In a sense, the whole of the Constitution was an effort to establish justice by establishing adjust government but From my perspective as a judge, one thing that established justice surely means is the establishment of a judicial system. The recent debates over the nominations of a new justice to replace justice Powell have focused public attention on the court, and have led to questions concerning the courts role in our constitutional structure, its power and the manner in which it operates. The answer to all these questions lies in article three of the Constitution, creating the judicial branch of our government.
The framers of our Constitution, set for themselves abroad agenda. They were to create an entirely new structure of government, that we are still here without structure and tact is a powerful testament to the skill and wisdom they have applied to that task. Whether the fact that 33 of the delegates were lawyers that counts for much of that Gil, I can't say. The breadth of their work, however, often makes it difficult to divine precise guidance from their deliberations. For in certain instances, there was little debate concerning particular provisions. In reviewing the records of the convention, one is struck by how little attention was paid to the judicial branch. In contrast to the extended debate concerning the composition, and the structure of the legislative branch, and the manner in which the executive should operate, which spanned months of the convention. The intermittent debate over the judiciary could easily have been conducted in a single afternoon. Perhaps the delegates had exhausted themselves on other matters and were worn down by that hot Philadelphia summer when they finally turned to the judiciary. After all, they didn't begin to discuss Carson Ernest the more difficult questions concerning the third branch until after the Great compromise was breached, that is resolving the structure of the legislative branch. But comments made in the course of the debates that did take place concerning the judiciary suggest another reason. The general lack of controversy about it was due not to exhaustion of the delegates but to a general high regard for the judiciary. The experience with a despotic monarchy and what state legislators the framers felt had run wild led to a wary if not disparaging attitude toward the legislative and executive branches. A single executive was seen by Edmund Randolph of Virginia, as dangerously close to a monarchy. James Madison worried that the executive might pervert his administration into a scheme of speculation and oppression. He said the legislature fared even worse than the delegates mines. Governor Morris predicted that the legislature will continually seek to aggrandised and perpetuate themselves, he said, and in the view of Nathaniel Gorham of Massachusetts, public bodies feel no personal responsibility, give full play to intrigue and cable and engage in dishonorable measures. In contrast, the framers had only kind words for the judiciary. Oliver Ellsworth of Connecticut, for example, who became the third Chief Justice of our court saw the judiciary as possessing wisdom and firmness, and a systematic and accurate knowledge of the laws. James Madison was even more effusive, arguing that the judiciary would prefer consistency, concise snus personal acuity and technical propriety in the laws, he said. And James Wilson pointed to the example of Great Britain, where he felt the security of private rights is owing entirely to the purity of her tribunal's of justice because they held judges and relatively high esteem. The framers were somewhat less concerned with an acting and directing checks on judicial power than they were with creating similar checks on the other two branches. Perhaps there are those today who think our judges might not deserve such favored status. But in the minds of the framers, at least, the third branch was the least dangerous branch. When the framers did get around to discussing the judicial branch, they were faced with three primary questions. First and foremost. Should there be a federal judiciary at all? And if so, should it be limited to one Supreme Court, or include as well a host of lower federal courts? Second, who should select the judges for whatever courts were established? And last, what should be the terms and conditions under which those judges would serve?
All these issues were eventually addressed or intentionally not addressed. And the result is the federal judiciary we have today, a third branch of 749 active judges, and over 18,000 employees. The idea that there should be some sort of national judiciary was present from the very start of the convention. The Virginia Plan which set the groundwork for virtually all it was done in the convention, provided that a national judiciary be established to consist of one or more tribunal's and of inferior tribunal's to be chosen by the national legislature. On the second full day of deliberations, the convention approved a resolution that said, a national government ought to be established consisting of a supreme legislative, executive and judiciary. Within two weeks, the delegates began considering a more detailed resolution on the national judiciary. Starting with the language of the Virginia Plan, the framers merely amended it to provide for one supreme tribunal and one or more inferior tribunal's. This version was approved by the full convention without debate. Though the question of inferior tribunal's was later briefly revisited. The passage of this resolution left us with the Supreme Court we have today. Alexander Hamilton in the federal Papers offered some insight into why there was so little debate about creating the Supreme Court. He wrote that laws are a dead letter without courts to expound and define their true meaning and operation. Now,
occasionally application of the laws continues right to the present. My colleagues and I on the Supreme Court usually choose to review cases that present issues over which lower courts have reached conflicting holdings. We find resolving such conflicts to be so important that we've incorporated this factor into our rules as a consideration governing review on social rarely. The people have also demonstrated their desire for uniformity in the application. of our national laws in the 14th amendment added to our constitution and 1868 equal protection of the laws was elevated from a worthwhile goal to a constitutional imperative. And we on the Supreme Court have a very concrete daily reminder of the need for uniform application of the laws are building is inscribed with the words equal justice under law. There is another reason the framers found one supreme tribunal indispensable. Simply put, judges could not be trusted to agree with each other. And an observation as true today as it was 200 years ago. Hamilton noted in the federalist papers that we often see not only different courts, but the judges have the same court differing with each other. This could certainly be sad of the Supreme Court today. 175 cases and which we heard argument last year, there were differing opinions and all but 25. The framers recognize that since we judges could not seem to agree, the only way to get a final answer was to have one final course of last resort. In short, Hamilton accurately reflected the attitude of the framers toward the Supreme Court when he said that the need for one court of supreme and final jurisdiction is a proposition which is not likely to be contested.
Well, not withstanding the agreement concerning the need for a Supreme Court. The issue of the lower federal courts, inferior tribunals and the words of the framers was hotly contested. Only one day after the modified Virginia Plan resolution sanctioning one or more inferior courts had been approved. JOHN Rutledge of South Carolina, who later was nominated as a Chief Justice of the Supreme Court move to reopen debate on the proposition. He argued that the Supreme Court itself was sufficient to ensure uniformity, and the lower federal courts were would be to great and intrusion on state courts. Another delegate echo this concern, lamenting that the people will not bear such innovations and predicting that the states would revolt at such encroachment on their jurisdiction. Roger Sherman, join the opposition to inferior courts, but he side had no such lofty concerns a state sovereignty. For him it was a matter of simple economics. He saw lower federal courts as an expensive redundancy because the state courts were already in place and could do the same job. James Madison was not swayed. He stuck to the Virginia plans proposal, offering an argument that made him a dear friend to all supreme court justices. He was concerned that unless there were inferior federal courts, dispersed throughout the country with final jurisdiction in many cases, the appeals to the Supreme Court would become oppressive and number. Now, Madison thus became the first to express concern with the workload of the Supreme Court. And while this argument alone sounds more than sufficient to a Supreme Court justice faced with today's large workload, Madison had another motive for supporting lower federal courts. He worried that without lower federal courts, the Supreme Court would be left powerless. Having no federal trial courts to rely on the court would be forced to merely send cases back to the state courts, which he feared would simply come up with the same results again Providing no lower federal courts Madison more and would leave he said the mirror trunk of a body without arms or legs to act or move. The rest of the delegates were unmoved. By Madison's elegant please buy a five to four vote with two state delegations divided. That convention voted to eliminate the lower federal courts all together. The consummate politician, Madison immediately offered a compromise. He proposed an amendment empowering the legislative branch to institute inferior federal courts without mandating that it do so. This solution garnered overwhelming support. That's only nine sessions into the convention. The delegates had already agreed on the basic structure of the judicial branch of government. The result was the first clause of article three section one of our constant which reads as follows the judicial power of the United States shall be vested in one Supreme Court. And in such inferior courts this the Congress shall from time to time ordain and establish. Well after spending the month of June hammering out the structure of the other two branches of government, the framers returned to the judiciary and the remainder of article three on July 18, when they resolve the important question of who should select the judges that conventions earliest discussion of who should exercise the power of appointment took place in the course of the delegates approval of the idea of a federal judiciary. Now, Benjamin Franklin slyly suggested that we use the method employed in Scotland. As Franklin explained that in Scotland, the judges were selected by the lawyers who always selected the A bluster profession in order to get rid of him and share his practice among themselves.
The Virginia Plan had call for appointment by the national legislature. agreeing with this scheme, Madison had initially argued for selection of the judges by the Senate. But after the Great compromise had left that body composed of an equal number from each state, he, together with other delegates from the larger states changed his tune, favoring executive appointment instead, those from the smaller states predictably favored legislative appointment. With the battle lines drawn, some hyperbole began. First the larger states attacked legislators in general. One delegate said public bodies would be indifferent to selecting qualified judges, since they feel no personal responsibility. Side The Rhode Island legislature which had recently dismissed judges who have the temerity to hold one of their acts invalid, as an example of the length to which a public body may carry wickedness. Another delegate lamented that appointments by the legislature's have generally resulted from personal regard or some other consideration, then proper qualifications. delegates from smaller states came to the defense of legislative appointment. Roger Sherman, for example, argued that the Senate was composed of men nearly equal to the executive, and would of course on have on the whole more wisdom. These delegates from smaller states also attack the executive as unfit to exercise the appointment power. they mourn that he would use it to garner favor from the larger states on whom he would depend for election and that he couldn't possibly know enough to Select qualified individuals. Nathaniel Gorham of Massachusetts eventually suggested that the convention adopt the method employed in his home state, where the executive appointed the judges with the advice and consent of the legislature. This suggestion, which sounds eminently familiar to our modern ears, fell on deaf ears at the convention initially. Instead, the delegates voted on a proposal by Madison, that the judges be nominated by the executive with the appointments becoming final unless two thirds of the senate disapproved Madison mounted and elaborate defense of his proposal, but when the role was taken, he had fallen short. seizing the moment the advocates of legislative appointment immediately move that the Senate appoints the judges and without further debate, that motion passed Now that's where matters stood with appointment of federal judges by the Senate until a waning weeks of the convention, when very mysteriously and without any debate whatsoever, a change was made. On August 31, a mere three weeks before the convention adjourned, a committee with one member from each state was appointed to consider a variety of proposed changes to the draft constitution.
Four days later, this committee of 11 reported back a host of changes, among which was a section adopting Nathaniel Gorham's idea. The President was to appoint judges of the Supreme Court with the advice and consent of the Senate. Without debate, this provision was approved, leaving us with the second clause of Article two section two, which reads the presidential nominate and buy in with the advisor. And consent of the Senate shall appoint ambassadors, other public ministers and councils, judges of the Supreme Court and all other officers of the United States whose appointments are not here in provided for and which shall be established by law. It is this clause, which has been at the forefront of public attention during the senate hearings on judge Burke's nomination and subsequently judge Kennedy's. As I have just explained, however, the history of this clause offers little guidance as to what's proper construction, the meaning of its crucial phrase, advice and consent was never discussed. Thus, as it's true with so many other provisions of the Constitution, it has been left initially to the branch that must exercise a specified power or apply a particular provision to give content and meaning To the broad language employed by the framers, it is possible that we have recently witnessed a change in the scope of Senate inquiry pursuant to this clause. After all, it was not until relatively recently in our nation's history, that it was the practice of the Senate to ask any questions at all of the nominee once the delegates had decided we should have federal judges and who should pick them. The final question confronting the framers with respect to the judiciary was the terms and conditions under which these new federal judges would serve. Today, we generally take for granted the willingness of the other branches of government to enforce the decisions of the federal courts, even those with which they disagree. Aren't judicial ancestors, however, did not always fare so well. In Georgia judges had been whipped for some of their rulings. In Massachusetts they had been beaten and terrorized. In Pennsylvania. The treatment was less violent but equally cruel. The Pennsylvania legislature landed on the rather simple strategy of enacting drastic cuts and judicial salaries, starving the judges out of office or into compliance. The delegates at the convention recognize that such actions did not produce an atmosphere conducive to impartial and detached decision making. The Declaration of Independence noted similar behavior by the King of England charging that the king has made judges dependent on his will alone for the tenure of their offices, and for the amount and payment of their salaries. at the convention the framers sought for ways to To prevent such dependency by insulating judges from the potential Wrath of the other branches, as with the other areas here to the Virginia Plan provided the model it call for judges to hold their offices during good behavior, and provided that there be no increase or diminution of judicial salaries. This aspect of the Virginia Plan was first addressed in the Convention on July 18, when Governor Morris in a move that has forever endeared him to the entire federal bench, proposed that the resolution be amended to permit increases in judicial salaries.
Morris thought that increases could be authorized without creating any dependence of the judiciary on the legislative branch. Thankfully, the rest of the delegates concurred but the remainder of the Virginia plans treatment of Judges remained intact. The only attempt to change the formulation came late in the convention when john Dickinson of Delaware suggested that judges should be removable by the executive on the application by the Senate and House of Representatives. Governor Morris, now quickly on his way to becoming the patron saint of the federal judiciary immediately oppose the motion, arguing that it was fundamentally wrong to subject judges to so arbitrary and authority. admin Randolph join Morris arguing that Dickinson's motion, we can too much the independence of the judges, Dickinson's proposal was defeated with only one state voting and its favor, and the convention immediately approved judicial tenure during good behavior by an overwhelming vote. This left us with the provision we have today. The second clause of Section On of article three, which reads, The judges both of the Supreme and inferior courts shall hold their offices during good behavior, and shall at stated times received for their services that compensation, which shall not be diminished during their continuance and office. With this third issue resolved the framers had finished with the judiciary. In the Federalist Papers, Hamilton described the end product, writing that the judiciary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and neither force nor will but merely judgment. The judiciary is beyond comparison, the weakest of the three departments. This was certainly true 200 years ago, and indeed is an equally true today. Judges must rely on private citizens to bring cases before them and upon other branches of government to enforce their decisions. But at the same time, as one of our greatest Chief Justices john Marshall said, the judicial department comes home and its effects to every man's fireside. It passes on his property, his reputation, his life, his all. This fact particularly and what seems to be an increasingly increasingly litigious society, gives the third branch considerably more influence than any of the delegates to the Constitutional Convention might have expected. My hope is that when we judges exercise this influence and power during the third centennial of our franchise, that we also consistently exercise the sound just The framers were so confident that we possess. Thank you very much.
You have time for some questions. So, for those of you who would like to ask a few questions, if you would move to the microphones on either side of the auditorium. Now, let me just add this addendum. Justice O'Connor cannot answer questions or address issues, which are presently before the court or which are likely to be heard by the court.
know there's still plenty of questions out there.
There's still plenty
Well, you can understand by just with her presentation here today, why that would be the case. So, Justice O'Connor will be more than happy to, to answer any of your questions. So if you would move either to your left or right, and I'll take the questions here and
Okay, I think we have one right over here.
Do you feel that the ordeal that judge Bork went through was justified? Or do you feel it was a show of power to President Reagan by a democratically controlled senate?
Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Get that one? Yes. As I explained in my discussion today, the Senate may have indicated its intention to take a more active role in questioning nominees for the court in these recent hearings, That's very hard to say in part, Judge Bork was willing to explain in some detail some of his views. And there are certainly examples from the past when nominees were unwilling to explore in detail their views on particular issues. So we may have seen some kind of a change in the level of intensity of the examination at these hearings. I think we'll have to let time tell us whether that's the case.
I think we have a question over
here. I'm Justice O'Connor. I'd like to think on behalf of K state and many of the women here, I'd like to thank you for what you've shown us and what women can do in with their careers and and what we can see towards the future at all. I'd like to thank you for coming here and giving us such an enlightening discussion about some of the historical background of the judicial branch. One thing that I found really very interesting in your discussions is the confidence that the founding fathers had in in the judges in the the institution itself. Yet I'm despite the the confidence that the founding fathers had in the judicial branch, I find it a bit confusing that of some of your ideology as far as practicing judicial restraint, leaving some very crucial issues up to up to the states rather than to those people that our founding fathers had so much competence into, I guess, with some example with the Roe vs. Wade or some of the abortion decisions, leaving them up to the state, as well as some other things I'd like for I'd like to ask you if you could maybe and discuss some of your ideas as far as where that etiology comes from, despite the confidence that they had and and you making those crucial decisions? Well, I think it has to be remembered that the framers of the Constitution
Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
never expressed the intention that the judicial branch was the only branch empowered to make constitutional decisions and interpretations. In fact, it's quite clear from the history of the framing of the constitution that the framers intended that other branches of government and other officials themselves have equal responsibility for determining that the legislative acts they pass or the actions they take as executives are constitutional. And in that context, I think it's crystal clear that some of the provisions of the Constitution are addressed expressly to the legislative branch. And it was left to the separation of powers and to these other branches to make some initial determinations in that regard. I'm sure you know, also that some questions are questions which the court through the years has decided it should not address at all. Those that come to mind most prominently Are those the court is characterized as political questions in nature. The court, of course, is never the first to consider constitutional issues that come before it. The legislative body, whether it's state or federal that passes the law must decide initially, whether it's constitutional, and in many instances, that legislative body makes the final determination on that question. Better is certainly true when a legislative body decides not to enact a provision that it thinks is of questionable constitutionality. And likewise, an executive official or agency must make an initial determination whether the action It is about to take is constitutional. And it's only after a legislative body decides to act or is about to act or an executive agency acts or is about to act, that the courts even conceivably could come into the picture. But even then, the court doesn't come into the picture unless individuals with a stake in the issue who are affected directly by it have the time and the energy and the interest to take that issue to court and have decided and I think there are even some issues in our nation's history where we can see the court has not given the final answer. Not only is it not the first to decide constitutional questions, sometimes it isn't the last. And in that regard, I think the people of this country have, in times past expressed their interpretation of the constitutionality of certain actions in ways that have carried the day. And one example that comes to mind. I happened very early in our courts history when the Congress of our young nation passed the Sedition Act, which basically made it a crime to criticize the government and those in power Now the court never ruled on the constitutionality of the Sedition Act. But the American people did. loudly and clearly. There was a young man who was a member of the Congress of the United States. And he was an outspoken critic of the President, then President Adams, and of the party and power. And for these criticisms, which he published, he was tried under the Sedition Act and convicted and sentenced to prison. But the nation thought they had silenced a nuisance. And instead, they had created a hero because Matthew Lyon continued to publish criticisms of the government from his prison cell and to distribute them and he ran for reelection to the Congress from prison and he won
And when he was released from prison, he was greeted warmly by his supporters. And as I say the court never ruled on the constitutionality of that act. But the people did. And many years later in the case of New York Times versus Sullivan, dealing with the First Amendment, the court recited this history, and said that the view of the people of that act carried the day in the court of history.
Well, thank you again, Justice O'Connor, there will be another opportunity for students to talk with the Justice and the Little Theatre of the K state union at 130 this afternoon. So if you'd like to be present, then you would have an opportunity to ask questions again. Let's give justice Saturday O'Connor, another big hand. And thank you for Coming