By Justice Sandra Day O'Connor

Panel discussion at Ninth Circuit Court Judicial Conference

August 16, 1994

ITEM DETAILS
Type: Panel discussion
Location: Ninth Circuit Court Judicial Conference

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Transcript

(Automatically generated)

Host
Each year at our conference, we eagerly eagerly look forward to the opportunity to hear from the Associate Justice of the Supreme Court. Who is the circuit justice for the Ninth Circuit Justice Sandra Day O'Connor.

We are delighted that Justice O'Connor and her husband John have joined us again this year. Also joining us are three distinguished lawyer representatives of our circuit, who will engage Justice O'Connor in a conversation. It is my pleasure to introduce them to you. First, Ms. Lorraine Akiba. Ms. Akiba received her undergraduate degree from the University of California, Berkeley, and her law degree from Hastings College of Law. She is in private practice in Honolulu. Ms. Akiba is a lawyer representative to the Ninth Circuit, traditional conference and chairs the Hawaii lawyer delegate delegation.

Host
Ms. Nicole Dillingham. Ms. Dillingham did her undergraduate work at the University of Illinois and received her law degree from Northwestern University where she was on the Law Review. She practices law in San Francisco and as a member of the American arbitration Association and as on the executive committee of the California State Bar Association. Ms. Dillingham chairs the lawyer representatives Coordinating Committee and as a member of the Ninth Circuit Judicial Conference Executive Committee.

Host
And Mr. Les Weatherhead. Mr. Weatherhead graduated from the University of Oregon, received his law degree from the University of Washington. He is in private practice in Spokane, and he is chair elect of the lawyer representatives Coordinating Committee. He also serves on the executive committee of the Ninth Circuit Judicial Conference.

Host
And of course, it is also my distinct pleasure to introduce our special guest, Justice Sandra Day O'Connor.

Justice O'Connor graduated with great distinction from Stanford University and from Stanford University of school Law, where she was a classmate with Chief Justice William Rehnquist. Then bill Rehnquist. One evening and her third year of law school she was working on the Law Review assignment, together with a second year student, one John O'Connor. They had dinner afterwards and for the following 41 evenings. When asked about this years later, she used the word "proofreading over a glass of beer."

After law school, Justice O'Connor served as Assistant Attorney General and Arizona between 1965 and 1969. She was a state senator and Arizona between 1969 and 1975. She was elected to the Maricopa County Superior Court bench in 1975 and was appointed to the Arizona Court of Appeals in 1979. In 1981, President Reagan showed great wisdom and selected Justice O'Connor as the first woman to sit as Justice of the United States Supreme Court. When President Reagan introduced her as his nominee, he described her as "a person with unique qualities of temperament, fairness, and intellectual capacity." And indeed she is.

At her Senate confirmation hearings, she was asked how she wanted to be remembered. She replied, "The tombstone question. What do I want on my tombstone? I hope it might say, 'Here lies a good judge.' If I am confirmed," she went on to say, "I am sure that I would be remembered as the first woman to have served on the Supreme Court. I hope that in addition, I would be remembered for having given fair and full consideration to the issues that were raised, and to resolving things on an even-handed basis and with due respect and regard for the Constitution of this country." All of our colleagues and friends here join me in saying, Our society is much richer, for all you have done, and for all you are as a person, and as a justice of our high court. We are pleased, Justice O'Connor, that you have again joined us at our conference, and we welcome you.

Host
I now present to you a conversation with Justice Sandra Day O'Connor.

Host
Thank you judge me, Kevin. Justice O'Connor, it's been said that a Supreme Court term is really a snapshot in time. And if that so the reviews are now coming in on the latest snapshot on the previous term. And one of the most interesting comments I think that this previous term is going to draw is why the decrease in written opinions. As I understand it, there were only 84 written opinions issued last term which is the lowest number in 40 years, since 1954.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, there were, I think 84 signed opinions this term. In addition, there were at least six procuring opinions written but not signed. And the other cases that we had granted social, very young, some more dismissed as an prominently granted. At least one was decided by an equally divided vote after recusal. And so we ended up with fewer signed opinions than in any term since 1955. And people have looked at this and said, Now, what's going on? I think that the perception that the court is is reviewing fewer cases is probably overstated. We granted that same number of cert petitions the year before, they just were disposed of in a slightly different fashion.

I thought that it was interesting that in the last term, we have more unanimous opinions than in prior terms. There were only 14 of our decisions that were decided by a five-four vote last term. And that's a trend in in a very interesting direction. that perhaps is worth noting. We are still seeing the result of the decision by Congress to make our mandatory appellate jurisdiction discretionary. This is going to bottom out I suspect that we will not have another year with as few signed opinions. And the infrastructure, the overall workload has actually increased. Despite the fewer number of signed opinions, for each of the past three terms, we have seen an increase of 500 cases on the informal populace petitions. And this is a trend that seems to be relentlessly upwards. As you probably know, the Court's agenda ends up when we actually accept petitions for review, having a majority of the argue cases from the civil side, but we are seeing a tremendous increase in the number of petitions on the criminal side. And and in particular, the ISP side.

We end up having about a third of the cases each term involving Criminal Procedure And that percentage has basically remained about the same in the 13 years I've been there in terms of filings or in terms of in terms of argue cases, we end up with about a third of our argue, cases being cases involving Criminal Procedure with respect to the so called unpaid docket, which has been dramatically increasing. How are those cases being handled at the supreme court? In other words, do you find that you have to provide additional resources to deal with the unpaid docket precisely because there are times lawyers are not assigned to those cases? No, but we take all the petitions IFTA or otherwise seriously, and we devote substantial resources at the court to reviewing every petition that's five out we don't have additional resources for coping with these increased filings. It just means that we're looking at more cases.

So while you can say that we had fewer side opinions, the point I was making is that in other areas, the workload seems to increase to be increasing. On the other hand, there does seem to be a trend in the pure opinions. In other words, even in the 80s, we were seeing more like 150 to 170 opinions. So that I've heard Justice Kennedy, I think, express the view that they were targeting sort of 100 find opinions per term. No, I think we are not targeting any number. Many students of the court have said that probably about 100 signed opinions, that term is an optimum number. But the justices themselves have no target as to the number of petitions that we should grant for review. I've been there now. 13 years and the standards we are applying deciding whether to grant a petition for search early or not, are the same as the first year I was there, we have not changed the standards it till it still takes the agreement of at least four of the nine justices to accept the case for review. It's still a judgment call. And we are still primarily concerned with the extent to which lower courts have reached conflicting holdings on that issue. And so we're just finding that there are fewer cases that fit that mold. And to repeat, I think the the major change was the change made by Congress that eliminated our mandatory appellate jurisdiction, which used to take up a good 15% of our cases.

Unknown Speaker
Justice O'Connor, as you look forward to the exercise of your discretionary jurisdiction in the granting of petitions for the coming term. Just the Look for specific issues to take up and give. So could you give us a sort of a sneak preview about what to look for?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I don't think that we sit around and say my it would be nice to consider term limits, for example, instead, we simply take the petitions that are filed. And as you serve at the court over a period of years, you began to get a picture of what issues are out there in the courts of this country, state and federal, what issues of federal law are there that are recurring issues, and that are troubling the lower courts, causing conflicts to appear? And when we identify that kind of an issue that we know is going to Reaper that's an important issue and Importantly, whether it does appear, there may be some kind of conflict, then we are apt to decide, well, at some point, we're going to have to take that particular issue up and resolve it. And sometimes when the first conflict emerges among, for example, to federal circuits, we will conclude that it's a little premature to take up the issue, that it might be helpful if more of the Federal Circuit courts had a chance to consider it. And then after a period of time, we will look again for that issue and say, well, is the split going to heal itself? Or is it time now to take it and we do have some of those that we can see emerging over the years and that we can anticipate we're going to have to decide what's in that category?

Well, it was clear that term limits were going to keep coming up around the country because some 14 states have now enacted laws in this area. And there was a case of the ninth circuit that that hadn't made it all the way through the appellate process. And the court simply decided, I think that this was an issue that wasn't going to go away. That was very important to the nation as a whole. And I concern that maybe should be resolved sooner rather than later. And there were enough votes within the conference to take a case. The one that we took came through the state of Arkansas, as you know, so we'll be looking at that next term, among other things.

Unknown Speaker
Thank you. Justice O'Connor. I had a question. I think that it's in follow-up to some topics we had at our last Judicial Conference and also in response to what we see as the Legislative trend and popularity of legislative movements to federalize crime. And given today's presentation on hypothetical viewpoints of Thomas Jefferson should have come back today to comment on what's going on in the judiciary as well as the up on the hill. With respect to the federalization of crime and efforts such as that found in the National Crime bill, what are your views or the impact of this on the federal court system? Do you feel that it poses some risks in terms of the functioning of our federal system? What viewpoints do you have on that?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yeah, I'm quite concerned actually about the trend of that realization of crimes. I've spoken about this briefly, at least at this conference, a year or so ago. Congress seems to be moving clearly in the direction recognizing national problems and distance That the way to deal with it is to federalize the issues and bring them into the federal courts. Now, this is a change that should be a grave concern, in my view, to federal judges. In time, if this continues, I think we will have a complete homogenization of federal and state jurisdiction with consequent changes for the federal courts that I think would be most unfortunate. The new crime bill, for instance, does create a number of new federal crimes, the Violence Against Women Act creates federal offenses for Interstate stalking and spouse abuse and other sex offenses. It creates a new civil rights violation for crimes motivated by gender. And sexual abuse of children has been made , has been federalized in the bill.

And perhaps most burdensome, as I understand it, the bill now pending provides for juveniles age 13 and older to be tried in federal court for crimes such as murder, assault, robbery and rape. And this would be a very significant change, as you know. So this is a trend that appears to be gaining momentum with Congress and a trend that is going to have very drastic effects on the federal courts as a whole. In my view. It does seem that while the federal jurisdiction is being expanded by certain crimes, in particular criminal matters being added to the cases presented to the federal judiciary At the same time through alternative dispute resolution, a lot of cases are being funneled that way, in particular through various means of private arbitration.

Unknown Speaker
And I know that you have written and talked about the Judiciary Act of 1789, and how important it has been to the development of justice in our country, partly because it created an independent judiciary, partly because there was public access to the courts, an opportunity for federal review of decisions of federal law. Do you have a concern that as we divert a stream of cases, sometimes complex commercial cases, into the private sector, that some of the principles of the Judiciary Act and some of the foundations of the way it justice is administered could be undermined in our country?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I don't have a real concern about that. I think my underlying concern is that as a federal courts, we ought to be promoting alternative dispute resolution. And the more new federal crimes are enacted, it seems to me we better be even more concerned with the extent to which we can find alternative means of resolving disputes. The argument, of course, or the criticism is that by depriving certain litigants of their day in court, that alternative dispute resolution engender some costs because litigants that may have had a novel legal argument or have presented a novel claim to an arbitrator instead of a judge, we're not going to see an appropriate development of the law. That instead of an opinion, we just see on arbitrators financial award. But I really think those concerns are overblown at present. Not every case is appropriate or alternative dispute resolution.

I think in federal court alternative dispute resolution is quite appropriate for a run-of-the-mill diversity case without much precedential value, I think that's a good use of alternative dispute resolution. And I think that the national standards for court-connected mediation programs 10 points, some considerations that would enable us to identify those cases that are suitable for mediation or alternative dispute resolution, and send those that are suitable on to that form of resolution and not all the federal courts. I have implemented all of the varieties of all ternary dispute resolution that are available. They include, of course, arbitration and mediation and early neutral evaluation and summary jury trials. And as you look around the federal courts of the country, some of them have employed all or most of these techniques, and others, such as in the district of Arizona have employed almost none. So we have a lot of variety among the districts of the federal courts of the nation, and they're accepting acceptance and promotion of alternative dispute resolution. But I think that we shouldn't be as concerned presently, Nicole, with whether we're stifling the development of federal law. I think our concern ought to be how are we going to enable these federal courts to survive in the face of federalisation.

Unknown Speaker
Justice O'Connor from your vantage point you see, not only advocates in your court but via your review the record in these cases, you see the length and breadth of the lawyers performance in the cases that come to you. And I'm very curious to know whether you have a comment on the quality of advocacy in the federal courts and in particular on what lawyers or the bar might do to improve the administration of justice in federal court.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, at our core, it I think when a lawyer comes before the Supreme Court, that lawyer is going to try to do the best possible job. They're inevitably challenged by that opportunity. And I think they really go to great lengths to try to prepare and do as well as they can, of course, even recognizing that we have some difference of ability that is evident in the advocates that come before us. But I've said before, and would repeat that sometimes the most helpful arguments are made by people from small communities who've never been to the court before and may never be back again. But they know the subject matter and they know the area of the law, and they're willing to explain it and share it with us and make a very helpful argument.

I remember a case from it came out of Montana, and it involves some arcane point of Indian law. The lawyers on both sides of the case were lawyers from smaller communities. Neither one of them had been to the Court before. Each of them provided us with some very helpful background in this area of Indian law, and they really advanced the discussion during the oral argument phase of that case at the court. And what we like to see at our appellate level anyway, is advocacy that consists of a willingness to address the questions raised from the bench and goodness knows we have enough of those these days. Maybe too many. But anyway, we need a willingness to deal with those questions. And not to make some prepared statement and an ability to focus on the consequences of the rule that the lawyer is advocating the adopted, we get very concerned at the supreme court with how the rule if we adopt it will play out in other context, and that leads to the hypothetical application of the rule in other situations. So the advocate has to be prepared to deal with that kind of inquiry. And I'm sure that concerns are similar at the Court of Appeals level.

Unknown Speaker
What about the improvement of the administration of justice from the standpoint of the bar? Any thoughts about how we might contribute to that process?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, of course, that's a pretty broad question. But I've been really concerned over the years with what I see as a decline in professionalism, if you will, in the bar as a whole. All of us tend to look back and see the good old days and see how things have changed. I'm guilty of that. I think when it comes to looking at the legal profession, because I look back at the days when I began the practice of law, and it was a situation ban. When law firms were not looking at a requirement of putting in 2200 billable hours a year insisting that every young lawyer do that, they were more concerned with development of the young lawyer as, as a lawyer and as a contributor to the community as a whole. I remember law firms encouraging lawyers to young lawyers to become involved in the community to get acquainted and to serve on boards and commissions and the active community participants. I don't know how a young lawyer today whatever have that chance, because there's so much pressure on them to put in the billable hours.

Now in terms of constant dollars. When my husband and I started practicing law, lawyers were paid far less young lawyers were paid far less in terms of constant dollars than they are today. Today, a young lawyer is paid far more in constant dollars. As a starting practitioner, then in our day, but the consequence of that is that the law firms have to make the money to pay those salaries. And that puts more pressure on the lawyer to turn out billable hours than was ever the case before. And I think we also see as a consequence of some of that, and as a consequence of some of our discovery practice in this country, an increase in tensions between lawyers, and we see some conduct at times of lawyers that we shouldn't see. When we practice law in smaller communities, I think lawyers tended to conduct themselves a little better overall, then they may in a large urban environment where they aren't apt to run into the same opposing counsel.

Often, or even the same judge, you have 50 or more trial court judges, and you aren't likely to encounter the same one over and over again. And that may contribute, in a sense, to a lack of professional standards. So I think we have a real concern here. And and you've had discussions at the Ninth Circuit on professionalism and on concerns that this circuit has acknowledged with regard to how lawyers are treated and court how they treat each other and how judges treat litigants and lawyers, about judges. Judges leading each other civility within the judiciary. I think that's a concern too, because judges have an influence on how the law is practiced. And we do see on occasion in appellate opinion, Young writing, they use some, some pretty sharp language. And there's the old saying sticks and stones can break my bones, but words will never hurt me. That probably isn't true. And I think that judges should be very careful in in their use of rhetoric and their opinions and and try to make the arguments and the written opinions. courteous, at least. This is a concern.

Unknown Speaker
I have a question. It's it's not one directly related related to the administration of justice to the court administration. But it's really more from your experience being on the court now for 13 years and having witnessed the retirement of several fellow justices. I think there are many of us out there that would be very interested to hear your perspectives and terms of having served with many of these colleagues, Justice Marshall, white or black men. And if you have any anecdotes or interesting experiences you'd like to share with us, in terms of serving together as colleagues on the bench?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, it is always true that when we lose a justice at our court and get a new one, that we have a new court. It's not the same. When you have a small group of people who work as closely together as the nine of us do on that court. You develop working relationships and you work with the different personalities. And when you change one of those people, you really see a new court. We have seen that at our court more rapidly in the last two or three years. Just Despite, step down, and I was so sorry to see him go and one reason I was was because justice white took a special interest in the cases that came to our court on original jurisdiction suits between states where we would appoint someone from the court, we would appoint someone to take the testimony and be a special master and make recommendations to the court.

Many of these cases involve Western water law disputes, and Justice White would follow every one of these with enormous interest and care. And he had a real concern to make sure that we appointed good people to take the testimony and make the recommend patients, and that the cases moved along on schedule and that we dealt with any issues that arose. And I don't know who's going to pick up the slack there. And you would be amazed those of you who've had any contact at all with Western water law with how few members of the Supreme Court have any background in that at all, or even any appreciation for the importance of water law issues in the West. So that was a tremendous loss when we lost Justice White.

Justice Blackmun, of course, was a member of the Harvard Glee Club, and I think he loved music and singing. And one of the things that he did at the Court was to enable us, through a foundation, to get a nice grand piano. And maybe those of you who've been to the Court have seen it in the East Conference Room. And because of that acquisition, he then organized about every other year, music, an afternoon program of an hour or so with some accomplished musicians who were able to use the piano and put on a concert there. And it's been so special. And I hope that simply because he's retired, he won't give up his interest and that maybe he'll keep picking that up.

And Justice Blackmun had quite a sense of humor, has quite a sense of humor. And there was an occasion at the Court when the chief justice was away, out of town, and the next most senior justice was away and out of town, and Justice Blackmun became the Acting Chief Justice. Well, he sent around a really amusing note to all of us. And he said that it occurred to me that with this happy state of affairs, to wit, with him being Acting Chief Justice, that maybe we should close the building for a week or two, schedule square dancing in the great hall, and obtain a Court cat to chase down the mice that we were having.

And of course, when we when we saw Justice Marshall's retirement, we lost a very strong voice on the court for principles that Justice Marshall fought for all his life. That was a man who, at great personal risk to himself, changed the face of America. And he made it something that we could be proud of, and wouldn't have happened without his action and without his influence. But all the while he didn't do it by standing on a soapbox and preaching to us. He did it while retaining his own personality, his own sense of humor, his own willingness to look at life as a series of adventures that he was willing to share with the rest of us. And he was at our conferences, he would talk to us. And every case that came up would remind him of an anecdote or something that had happened to him during his life. And he would tell us those stories, and they were very poignant. They made a point.

We had a case one day at the conference, we were discussing from Mississippi. And he said, "Now Sandra, did I ever tell you about the welcome I got in Mississippi?" And I said, "No," he hadn't. And he said, "Well, it was back in late 1940. And I was waiting for the next train to Shreveport." He said, "I was there in Mississippi trying to do some matter that the NAACP had sent me to do." And he said, "I had gone around to the back of the local restaurant to the back door to talk to one of the cooks and see if I could get something to eat, because I couldn't go in the front door and get anything to eat." And he said, "When I was around at the back door, a man of your race came up to me. And he said, 'Listen up, boy, because I'm only going to tell you this once. The last train out of here is at 4pm. And you better be on it cuz niggers ain't welcome in these parts after dark.' Guess what," said Justice Marshall. "I was on that train." Well, he made his point. And he made it very well. And you can't replace people when they leave. We lose something very special with the retirement of each one.

But at the same time, we've gained something very special with the arrival of the second woman on the court, which I greeted with enormous pleasure. I must say, Ruth Ginsburg, who did a fabulous job from day one on the court, she just is a wonderful addition, a fine justice. And we're now going to have another fine new justice with Stephen Breyer, who comes to us also with enormous skill and good personality and interesting experience that will enrich the lives of all of his colleagues, but more importantly, will benefit the nation from the experiences that these new justices have had.

Unknown Speaker
Justice O'Connor, as our last question, at the conclusion of this conversation, the conference will be in recess briefly. And some of us might take a paperback book or something else and go down to the beach for a stroll. And we're just wondering, what have you been reading lately? Is there something we ought to include in our beach bag?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I prompted her to ask this question. They asked me, what do you want asked? And I said, Well, I'm willing to deal with anything you ask, but do ask me that question. What have I been reading? Like Linda, and they thought that was sort of strange.

But I'll tell you that this has been an interesting time for me in terms of my reading, and I get so busy during the term that I get books that I want to read, and I stack them up by the bed. And by the end of the term, the stacks pretty high up. And this year included a review again of David Frederick's wonderful new book about the Ninth Circuit, Rugged Justice. I think you're going to hear from him tomorrow. And I hope all of you get the book and look at it. It's just a remarkable account.

And the ninth circuit is unusual in its history, and it's a very rich collection of activities that you will find of interest as someone in the ninth circuit. And another book that I read this summer and loved reading was Professor Jerry Gunther's new biography of Learned Hand. Now, those of us who know Professor Gunther were in despair that he would ever get this book completed. He's been working on it, I think, more than 20 years, but completed it masterfully. So you will love the book. It's just what a remarkable figure Learned Hand was, one of the giants in the legal field field in this or any country. So I very much enjoyed that.

And then another book that I read this summer that I have saved up was the new biography of Lewis Powell, Justice Powell. It was written by a professor at the University of Virginia who was a Lewis Powell worker at one time, and it is a magnificent biography. You will love it. It's so readable. You just can't put it down. And I thought I knew Justice Powell. Well, until I read that biography, and then I realized that there was so much more to his life than I hadn't even realized in the years that we served together. And I know you would love the book if you get a chance to read it.

Unknown Speaker
Well, I'm not sure they're in paperback and on the bestseller list yet, but we will look for them. Justice O'Connor, thank you so much for putting up with us and for joining .