Stephen Breyer
Justice is Sandra Day O'Connor and Stephen Brier participate in a question and answer session with judges of the ninth us Circuit Court of Appeals. This event took place at the circuits annual Judicial Conference held this year in Monterey, California. It lasts an hour.

Unknown Speaker
Judge case and mythos p&i are the live in the water be at the opportunity to carry on this conversation with our justices. I'm not going to make any elaborate introductions. All I'm going to say is this is not Judge Judy, and matters not judge Walker.

Unknown Speaker
The usual custom. We're going to start off with a question to the junior justice.

Unknown Speaker
Several factors influenced the members of the conference. But to choose, as the theme for this conference, the importance of the independent judiciary in securing a free democratic society for its citizens. Many of us have had an opportunity to observe firsthand the corrupt and proven sighs legal systems of the country's emerging from dictatorial systems, the contrast to our own legal system, but home the preciousness of our system, and we have the striking criticism of judges by politicians on both sides of the aisle. The bear incident was produced over judicial confirmations have suggested that we need to pay heed preservation of our own independent judiciary asking just just prior to see a real threat to our traditional independence, or is this just business as usual? And do you have any suggestions as to how we might take corrective action?

Stephen Breyer
I said last yesterday or the day before that, and I think it's true that the federal judiciary, it's business as usual. That is to say, I don't know what period when the federal judiciary has not been subject to criticism. We're used to it. We can accept it, and people are free to criticize us. I think that other periods in our history, for example, when the Supreme Court decided Brown versus Board of Education when the South was desegregate. There was a period in which it was far more difficult for many federal judges, and I think here of the great Fifth Circuit during their desegregation decisions, when it was much more difficult for them to remain independent and enforce the law than it is today. But I agree that we should, of course, remain vigilant. But there I suppose that the best thing we all can do, it's what my father told me years ago, I've tried to stick to it. Do your job, do it well, and do it properly. And maybe people will notice but even if they don't least have that satisfaction. And then I think we're we as judges can help. Once you go beyond that. And we try to do it a little bit and I know Sandra has and I have it is taught to the next generation IETIE it does not disturb me when I read that more people know the names of the Three Stooges than three supreme court justice. That's funny, it does disturb me. When I read that more people know The Three Stooges, that know the three branches of government, because that is a situation that cannot be tolerated. It won't, we won't be able to survive if that is true. So I say it's our job to do our jobs. It's our job in so far as we can to try to teach the next generation and the generation after that. So when I have a chance to appear in a school and talk to students, I take it and when there's a chance to bring them into the courtroom or the court house, I think that's great. And beyond that, although we can speak and we can talk about the importance of salary of resources of life tenure, and believe me, they are important. The strongest voice in our favor in that respect is not our own, but rather, it is That of the bar. Everyone has problems. And everyone talks about his own problems. And everyone knows that everybody else feels most sensitive to his own problems. Therefore, it is best if it's the bar and not the bench that takes the lead in explaining to the public, why a strong independent judiciary is in the interest in terms of liberty, and in terms of prosperity of every citizen of the United States.

Unknown Speaker
Thank you.

Unknown Speaker
Well, following up on that, let me ask Justice O'Connor. We have heard a lot at this conference quite a bit about the separation of powers and the plight of the third branch and whether it's at the mercy of Congress, which of course is what the Constitution says about some things, especially for appropriation of adequate resources, creation of additional justices. judgeships, timing confirmation judges and issues having to do with jurisdiction. Following up on what Justice Breyer said, what role you think your court should, and the individual individual Justices of your court should do should follow in interacting with the other branches, particularly the legislators.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I think that it is quite open to judges at any level, to communicate with legislators at any level, about matters affecting the judiciary. The cannons have made them reasonably player and it can be extremely helpful to a

Stephen Breyer
legislator, whether

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
it's in the state or the national level, to have a better understanding of what the issues are and the arguments in favor or against a particular proposition. I don't think anything of us, as judges should hesitate to respond to inquiries by the legislative branch or members of it, or to communicate our concerns on issues affecting the judiciary. And I served as a legislator, and I know that it helped me a lot sometimes to find out arguments for or against something about which I had had level appreciation before. So I think it's all right. And, and a word or two about what justice Briar was just addressing and what judge pleasure but a Fletcher talked about, which is that we care about judicial independence, and we must as Justice Briar stamp, explain the concept and the reason for it to future generations. And I think we also have an obligation to carry forward efforts to an Courage, these nations that are forming in many parts of the world about why we think and independent and a qualified and a responsible judiciary is a key ingredient to the

Unknown Speaker
rule of law.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
We talk so often about the rule of law and so proud and we say how that's the key to peace among nations and the future of our, our plan. But I've had judges and lawyers from other nations talk to me, and not so long ago and say, well, we have a rule of law. We have laws that are passed that deal with these subjects, and that's a rule of law. But what's missing in that concept, is the notion that unless the nation's basic guarantees or citizens are enforceable by the citizens, even against the will, of the majority of necessary by virtue of the action of an independent and a responsible judiciary, then you don't have a rule of law. So it's crucial, not only at home, but abroad, that everybody understand why we even talk about the issue.

Unknown Speaker
Well, you mentioned Justice O'Connor that you were a legislator, those of us from Arizona remember when you were the majority leader of the Senate, not only a legislator, but one of the most influential and powerful ones around? And that leads me to follow up and say, it seems to me too often what the judiciary does his only go to Congress or when they have a problem, as opposed to maintaining a relationship with whoever the local senators and congressmen ought to be. Is that something you would encourage us to become more proactive about?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
it? Most of the judges I know are acquainted with each with at least some members of the state life legislative branch from which they come and members of Congress from their area. And I think it's good to maintain some form of communication and a sense of friendship with those people through the years. It can be very helpful to the legislature, as well as

Unknown Speaker
Justice O'Connor, we always count on you to deliver the Ninth Circuit annual report card opens with any constructive criticism you may have is the way we do our business. What do we have to tell us this year?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, basically some good news and I made some notes

Unknown Speaker
here that I want to try to find.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
If you are well aware, I think the Supreme Court routinely reverses more cases that it hears then it affirms the average. I think reversal rate is about 65%. And I've got the the precise figure somewhere in here on the night of your radius. This term we affirm for the 16 cases we took from the night and affirmed in part and another Now this means that in the Ninth Circuit this term, only 69% will reverse now bad so I congratulate the night. I don't come to it this year with any list of suggestions or pet peeves.

Unknown Speaker
Yes, we were expecting a long answer.

Unknown Speaker
short question.

Unknown Speaker
So is that better or worse than the other circuits? The 69?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, as I said, it's 65% on the average that get reverse, so 69 right there in the ballpark.

Unknown Speaker
So within the normal,

Unknown Speaker
both justice Briar and O'Connor, I'm sure the members of the conference would be interested in your views as to which cases decided in the past term are the most important or significant than why you feel that way?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I have I have one candidate that's kind of interesting. That may or may not have noticed, and it was a case from the Ninth Circuit saints versus Rome, which struck down a California law that limited welfare benefits for new residents for the amount they would have received and their former state of residence and the court sprocket. Down on the basis that have violated the right to travel as protected by the privileges and immunities clause of the Constitution. Now, I think the court has relied on that clause. Only one other time in the courts history, starting with the slaughterhouse case is when it kind of rejected that notion. So I thought that was an interesting case. I joined the opinion and think that was right. But it was unusual and interesting from a constitutional perspective. And of course, there were several faces fleshing out 11th amendment

Unknown Speaker
of the United

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
States. And I think, speaking for myself, again, having joined them, perhaps more has been made of the significance of those cases that might be warranted. Because it does not mean of course, that states can't waive their sovereign immunity as many have and as Mirabelle do, and the federal government, of course, can sue always to enforce and require states to follow federal law, which is applicable, an important light, private litigants can still Sue state officers to require them to follow federal law under the ex parte young doctrine. So I don't think those cases mean the end of state responsibility to follow federal law. Now, my colleague over here may disagree as he was on the other side, and it was a pretty heated other side

Stephen Breyer
to what happens in these cases I've learned and that's why it's so good to have a little time off in the summer.

You begin to think my goodness, my side is absolutely right. It's totally clear five before me, and then you do think it's also true. I think justice jackson said it and after two days away from Washington DC, you begin to think, well, Jax, you know, he said it using words that I've never fully understood. I think he said, Well, we're not final because we're infallible. We're infallible because we're final. And I began to understand that means we're not necessarily always right, because we're such geniuses, that just that we're the last word and someone has to have it. So that's why we normally take these very, very difficult cases were lower courts have split because if they haven't split, we're not necessarily going to get a better judgment. I say all that because while we had some very difficult cases in the in the sex harassment in schools, in handicap the Law, statutory law, and as well as these five before decisions in the sovereign immunity area, with two days out of Washington, you begin to realize that one of the geniuses who one of the one of the geniuses of our Constitution, and the way that Supreme Court is constituted, is the long life tenure is likely to me, different periods of appointment, different people with different views being appointed. And it wasn't supposed to be that everybody had the same view of everything. And you begin to think, as judges know, in their hearts, and sometimes a bad thought creeps in. Well, that thought is chased out and the that different people sincerely believe, different views about these difficult legal questions of constitutional law. And so yes, it's absolutely clear five to four an hour's worth of thought no one believes that.

Unknown Speaker
I might mention a case in which the two of you were in to sit together

Stephen Breyer
was bound to be right. But

Unknown Speaker
absolutely. This was Jefferson County versus Jake or you might just speak a little bit about that to Justice O'Connor. I joined justice

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
briars descent so we better talk about it. Absolutely. Right. Yes. I

Stephen Breyer
know it's of interest to federal judges, possibly because the the some federal judges sued to set aside a county tax and the county tax was so phrased that it said it is a tax on performing your work as a federal employee. You cannot perform your work in this county unless you pay a tax which is measured 0.5% of your income. Well, we thought that they can't do that, but a tax on performance of word. And the majority thought, No, it's an income tax. It's measured by income. I have to admit there's something to that. But nonetheless, not enough to it. So we went in the opinion and felt that if you looked at it, the the lawyers, you see, they pointed out, we're only paying $250 because there was an exception for people without a license from the state while the judges were paying much more than that. And that, of course, was not a satisfactory state of affairs for the judges. And, and they made a lot of arguments and you can read this in detail. We explain we thought why we believe that it was a tax on performance work. The others thought that

Unknown Speaker
Well, it certainly shot the federal judges association that put in an amicus brief I can say Yeah.

Unknown Speaker
Well, a hearing Justice O'Connor talking about the 11th amendment cases leads me to ask a question that is rampant among the bankruptcy judges and particularly the bar also, which is when you have broad statutory schemes like the bankruptcy law, and you have states as primary creditors in those cases, it becomes increasingly difficult to figure out how to enforce those broad federal schemes in the face of the 11th amendment claims. HX.

Unknown Speaker
Party

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
young.

Unknown Speaker
It's enforceable.

Unknown Speaker
Well, so maybe what are there any state attorneys general?

Unknown Speaker
Trying to give proper respect to judicial difference I wasn't sure when to jump in here, but I will jump in now. We read in here many comments about the port in recent years taking fewer cases than they have taken in the past. I guess justice prior, I'll ask you how do you explain this phenomenon?

Stephen Breyer
It's not conscious. I mean, we're trying. We it's quite an interesting. I mean, when I sit in the conference, you do and we're looking, I mean, we want to take a

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
and I'm urging Yes. Come on, we meet

Stephen Breyer
every time we meet, and we said, What is there really a conflict here? And you say, yes, there is we take this case, and you explained it to us. I mean, if I would say right now, if there is a con, I mean, remember, we see our job, I think primarily as a job of having a uniform national law where it is required uniform national federal law were required, where it is already uniform. Because there's no disagreement among the circuits. There's at least a question why we should be brought into it. If it's not uniform, well, that's basically our job. So if in fact, though, I would never say never, there is a conflict among the circuits, then the question is, why didn't we take it? And sometimes there's a good chance. But if there is no conflict among the surface, a real conflict, I don't mean a conflict that I have to admit we find sometimes the lawyers go through and say, you see, Sergei has used the words for the standard of review burden of proof with very strong something, and the other said, quite strong. And the other said, well, not all that strong. I mean, we don't really consider that a conflict. But But the real conflict, and the question is, why didn't we take it no conflict and the question is Why did with all right, I think that the numbers perhaps have been showing fewer conflicts among the circuits, which would mean Despite all of the statistics that have been given there is an era of harmony in American federal law among the Circuit Court of Appeals, but I know I'm being a little facetious. I'm saying it's not conscious. The opposite is the case.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yeah, we are looking for good issues that are appropriate for the court to take. And I still would answer the question which has been asked at previous sessions like this, in part by referring back to Congress's decision to make our appellate jurisdiction discretionary. It used to be that we have to take an appellate appeal. It that raised a substantial question of federal law, regardless of the extent of the conflict, and that represented about 15% of our cases as a result, and when Congress made that discretionary It really changed the numbers vary dramatically. It doesn't account of a total drop, but certainly still accounts are a large portion of it.

Unknown Speaker
Well, we understand that the court has this tertiary pool to identify cases that the court might consider cert worthy. And I'm sure that the lawyers in the audience here particularly would be interested in learning more about how that operates.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I think every justice one has the justice as law clerks participate in a eu and petitions are searchable Mary that arrived at the court are assigned on a random basis to all these whole member law clerks. And they do research on the petition and write a memo following a standardized format of structure and tell us their view of the extent of which there is a Genuine conflict in the cases of the lower courts that are cited by the party, so any that they know up and also point out any jurisdictional obstacles that would prevent the court from really reaching the issue even if we wanted. Those memos are helpful to the justices their shared with all the justices. And they don't dictate what we do, but they certainly help us in the process of figuring out what's a certain worthy case and what is

Stephen Breyer
the law clerks don't decide what we're going to take.

And we do decide and the memos are helpful and necessary. The there are lots of failsafe systems. One system is that any one of us can put any case on for discussion at the weekly conference. And of course, we have different views. Sometimes about that. But this is surprising similarity about what we think is worth discussing. Another safeguard is when we're in the conference, all it takes is one of us to say I'd like it held over for a week. And all it has to take is somebody says something that we didn't think of which does happen, held over for a week. And then the Justice who held it over, will write a memo would look into it pretty carefully. So I I then, and then we'll discuss the following week or the week thereafter. I read and I'm interested in the press articles about our Serbs For this reason, because quite often there is a criticism of people say we should have taken this case or we should I'm not so interested in that someone else thinks we should have taken it or not. I mean, that's basically our job. I do want to see if they say the court to to take in this case, and I think to myself, what case that would be The band, you say, if somehow it missed our attention? And I'd have to say over five years now, I haven't really found that. I haven't really found that the I mean, I there's plenty of disagreement about what we should take or not. I've sometimes expressed it in writing. And so is Justice O'Connor. But I haven't found that we are missing cases because we don't know they exist.

Unknown Speaker
Other than splits in the circuit. Are there any other general categories of cases that when you say you're looking for cases to take that you Alice

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
occasionally, you know, we get an appeal on a patent case or a petition on a patent case that can go only to the Court of Appeals for the Federal Circuit, they'll never be a split. But sometimes the division of opinion of the judges in that court will indicate to us that this is an issue we better look at pretty closely and we've taken a few of those cases, even though There is not an can never be a split just to make sure they're on the right side of things. And I think we reversed one or two this tournament this past term. And in the death penalty area, too. I think sometimes the court is concerned with some error correction as opposed to split up authority to a degree.

Stephen Breyer
Most of the most, perhaps one of the best known cases the right to die case, came out of the Ninth Circuit and out of the Second Circuit, with both courts on the same side. But what you have in those cases, was a rule of law that was saying in vast areas of the country, the entire West and the North East Central, Mid Atlantic. The criminal statute, and important criminal statute of the states on a very visible issue could not be enforced and We thought that it was an appropriate time to take that case to establish a nationally uniform view.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I think we've already granted the case to be argued next term, dealing with the issue of whether the FDA has jurisdiction to regulate tobacco as a drug. And I don't think there's a split in that maybe I'm wrong, but I don't think there is. But it was perceived by so many who weighed in with us at the time of the cert grant about the importance of the issue, that the court

Stephen Breyer
I think, Mike is groups are helpful in that respect. The the, if the Solicitor General, for example, tells us that although there is no split, it's a matter of, of 10s of thousands of prisoners. If it's a question of federal criminal law, for a matter of billions and billions of dollars, if it's a question of a civil case, or if Attorneys General of various states come in and explain why it's important to have the decision from our court. Now. I think that definitely makes a difference. It's helpful.

Unknown Speaker
Some commentators have suggested that the court sometimes grants certain the case to decide a particular a particular question and then does the opinion and doesn't decide the question. The one that comes to mind for those of us in the bankruptcy community is the tool, one North South Street case from the last term that deals with the question of whether or not this is a somewhat technical bankruptcy issue, but whether or not there's the new value exception to the absolute priority room. The court's opinion basically said, we're not deciding that question. We're just saying this, isn't it? This doesn't qualify. Do you think it's fair criticism that these commentators make that the court should be giving more concrete direction to the Lord

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yes and No, actually, certainly lower courts in an area like that would love to have a clear, sweeping answer. But but sometimes happens and I think may have happened in this case, is that in getting into it enough concerns were raised to give the members of the court a sense of concern about articulating a broad rule, yes or no in answer to the question without a little more time to think it through in the context of other areas. And when we are presented with a question to which you could potentially give a sweeping answer, but where are the facts of the particular case don't call for it in any event? I think there's a little concern among many of us about taking that bigger step. I don't know how it is that the quarterback Heels for take your life. I know, speaking for myself that my observation is that the Supreme Court at least is inclined to take smaller steps rather than big sweeping steps most of the time, despite the fact that we're aware that a broad general answer yes or no sweeping away or questions might be desirable from the standpoint of the practitioner.

Stephen Breyer
No, I agree with that and bankruptcies. a perfectly good example, I'm sure you'd like a wonderfully broad clear explanation of the entire law of bankruptcy. But if you ask us for that, you might not get the right one. Over time, we have to be educated on these matters. And often it happens slowly, and it happens through bankruptcy judges who understand this field and the practitioners who understand it and the courts of appeals and district Courts who are closer to it working with these highly complex detail, statutes and areas of law so that by the time it comes to us, it's it's well argued right on the point we get a good understanding of what the issues are. So going off too far too fast, can be just as bad for the lawyers as maybe an opinion that you would find a little too narrow.

Sometimes maybe.

Unknown Speaker
I've been struck, although I don't practice criminal law by the continuing for clamor about the sentencing guidelines, coming not only from the defense bar but from the district. Justice.

Unknown Speaker
Right, not.

Unknown Speaker
One panelist when so far, I think it was yesterday is to call them obscene. And in particular, concerns been expressed that the guidelines together with the mandatory minimums have had the effect of of supplanting judicial discretion with prosecutorial discretion. And I have two questions on that. One is, is the court concerned about that? And the second is, Justice Breyer, are the guidelines operating as their drafters envisioned?

Stephen Breyer
Well, as as you know, and maybe not everyone does. I was one of the drafters of the guidelines, because I was a member of the United States Sentencing Commission at the time when the statute was first passed, and the job of the commission was to write the initial set of guidelines. And as you will also properly pointed out, but not everyone does, anybody can produce confusion. There is an absolute distinction of importance primarily not to the judges but really to someone like me who was a draft or because I don't want to be blamed for what I didn't do. But the the the clear distinction, which people don't always make between the guidelines mandatory minimum sentences that are written into a statute. The statute Trump's the guideline. So if there is a statute that says everyone who has a gun will go to jail for five years, mandatory minimum statutory. In the film yesterday, you saw that Senator Grassley correctly described but guidelines, which is what he was asked about, while judge spork, it was speaking primarily about mandatory minimum sentences, which was what was important to him and it is important. I would make that distinction. Now, I've said and so is the chief justice and other members of our court that refer back to what I've said, but they've also criticized mandatory minimum sentences. A mandatory minimum sentence says no exceptions. Five years is five years. That's not how the guidelines are supposed to work. The guidelines work as follows. As the district judges and the judges well known in a sentence, they are to take a typical sentence for a typical case, they direct the district court to say in a typical case, do the typical sense. Judge. If you have an unusual case, you depart down or you depart up, you do not have to apply this guideline. You may depart, but you must stay your reason. And if you can't stay to reason why the case is not a typical case, then you shouldn't depart. And if you can, you can defer. And the courts of appeals are supposed to and do review those reasons. And our court said in a case called who, that is how they're supposed to work. We said it is clearly I think We could say it. But now why then, is there this confusion and false because more than half more than half of those who are sentenced to federal prison are there because of drugs or guns. And in that area, drugs and guns, there is failed the statute books with mandatory minimum sentence very well, why the criticism of mandatory minimum? I would say there are two criticism. One is with judge spork and said that you get a case that just doesn't call for it. I mean, you had voted the sentencing guideline we had there was an actual case rather like this a person went and rob a bank. But he had a very low IQ. He only asked for $90 and he was was to buy medical treatment for his door. The door Die.

He returned to $90

called the FBI and turned himself in. All right now that does not call for an ordinary sentence. There are cases like that. But I'd say just as importantly, just as important is the sentencing Commission's research, which has discovered that there are more downward departures, where mandatory mandatory statutory sentences are involved. Then were there ordinary guidelines sentences? You think what? That must be impossible? You mean there are more departures where it's illegal to depart than where it isn't? Yes. Why and how? Because most people have the degree of what I call a common sense, and they will fight for correct sentence and maybe The prosecutor doesn't prosecuted exactly under the right statute. Or maybe the jury won't convict. And there's no sentence at all. Or maybe somehow this subterranean thing is worked into the system where you get results that aren't exactly justified by the facts. So I would say, and I have both the prosecutors and to defense lawyers, that no one's interest is further by a subterranean departure system that is hit when the very object of the guidelines was to bring sentencing how into the open. And until all people in the defense and the prosecution community, they can either agree with me or not agree with me. I think if they look into it, they will agree. But I think there has to be that uniformity among thoughtful people who look into the matter on all sides of the criminal justice system. The guideline system is a better way to go than the mandatory minimum. And if and when there is that uniformity, I believe Congress will respond.

Unknown Speaker
Justice O'Connor, I think the lawyers in particular would be interested in hearing your comments as to the perception of the quality of the advocacy, both the oral advocacy and the written advocacy and the court. And and any guidance that you would have with respect to increasing the quality of the advocacy is

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
generally pretty good. We hear most of the time arguments that are quite well presented. And we get for the most part, grapes that are well thought out and written. There are exceptions, and notable ones each term. We kind of laugh about some of them among ourselves. I saw that film this morning, the little note being passed. And I can remember maybe we've done that.

By and large, it's pretty good. I think I'm disappointed sometimes by the quality of some of the arguments made on behalf of public law agencies, Attorney General's offices or city or county law offices. And there has been an effort made by an organization of the Attorney General to try to help in that regard and try to do some training. I don't think it's totally had its intended effect yet. And I'd love to see further improvement there.

Unknown Speaker
those cases typically argued by members of the county or the state in house counselor

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yes, more often than not, they are. And occasionally, perhaps when it's a crucially important case, maybe some thoughts should be given to getting a really skilled at

Unknown Speaker
our core, it's very hardcore.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Terrible, I would not want to be a lawyer before our court. I mean, you open your mouth and there was a question. And the red light goes on, and you're still trying to listen to justice. Brian, continue.

I would hate to be there and try to respond to all laugh and sometimes I think goodness, we better allow more time for oral arguments if we're going to have so many questions. But it's

Unknown Speaker
it's a challenge. Do you think that oral argument is helping your decision or process

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Oh, absolutely. And sometimes it really

Unknown Speaker
makes a difference.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I've seen and every one of us has seen times when an oral argument causes us to change our mind. At least you come into it with some idea of what you pay we read all agree some we ought to the law firms about it. Sometimes each other and you go in and Gee, you can learn something that will cause you to change. So they're important. You there your colleagues,

students extensively sometimes.

Unknown Speaker
Speaking of changes, are they have there been any changes in the Supreme Court,

Unknown Speaker
that you think that the shame that the suit break.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
things move very slowly.

Stephen Breyer
Jonathan here who is

president of tops? I think he was. He used to be a fundraiser for I think one of the universities and he said he went to a very old man in Oklahoma was nine years old, started the conversation by saying you must have seen a lot of changes in your time. He said, Yep, I've been against everyone.

Unknown Speaker
But let me focus the question a little bit.

Unknown Speaker
One of our press panelists yesterday was made reference to the public panting for more information about substantive law and mentioned that it would be helpful he thought to the public and and informing the public not only to have decisions online electronically, but also briefs that are filed before the Supreme Court and the other courts online electronically. Do you see that happening in the 21st century.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I don't see any obstacle to it happening. If something Nobody wants to fund the cost of putting it online. It's there they are public documents. So it could certainly be done. And it probably will everything else is going online. Why not briefs that are funded? So probably

Unknown Speaker
will, you're going to go into the chat room are you as they suggested? I doubt that.

Unknown Speaker
We've had a session this morning discussing the phenomenon of judicial isolation. And and if not in chat rooms, how does each of you combat the phenomenon of isolation in your own lives to the extent that you experience it?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, speaking for myself, I don't feel isolated. Sometimes. I sort of wish I did. But that has not been a problem. There are many demands and calls made and I tell you when I went back Washington DC. Far from people stopping calling, I think everybody I even cast in a hallway. say, gee, I'm in Washington, can I come by and see? So I think isolation has not been the problem.

Stephen Breyer
I felt it somewhat differently because because I think I came from the Court of Appeals where I was in Boston, I lived in Boston. You know, I've lived there for more than 30 years, and I was in an academic community. And because I'd maintained all of those ties, I felt moving to the bench was not isolating because academics and students particularly are not respecters of persons. And and that's good. That's excellent. And then suddenly to come to Washington. It's more isolated. I think it is in my job. And it was on the Court of Appeals. But I've made it you know, they're very long hallways, in the Supreme Court. And you look out the door and there's Isaac way down at the end of the Carter's David Souter. Hello, David. There, it's a building that is not a does not push people together. And the The fact is, though, I've maintained we've maintained a house in in Massachusetts, and I'll go back there quite often in the summer particularly, and I have my friends up there in particular, and so it's it's been fun.

Unknown Speaker
I suppose, with the speaking activities that most supreme court justices graciously accept that you don't have a lot of free time.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Very little. Yes, that's true. Now free time, but then I really haven't. during most of my life. I think any working mother can say she does. Have a lot of free time. And I'm still a no free time.

Unknown Speaker
I caught you on the tennis court yesterday.

Unknown Speaker
You know, back to the report card. There is a

Unknown Speaker
there's kind of a debate going through my court at this time as to whether it's appropriate for panels to suggest to Congress that they must change the laws, or that's something we don't I don't think we said that particular statute was obscene, but some countries gave it some pretty transparent criticism. Others on our court think that that's none of our business. what's what's the deal with the Supreme Court
Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I don't know that the Supreme Court is such as the view, but there are times in a number of times and opinions dealing with statutory issues, particularly where someone writing an opinion for the court will take pains to point out that, of course, the situation could be changed by legislation in ways that would make it easier to understand or in the writers view more equitable, something like that. There are many examples of I don't know, I suppose there's no reason why there shouldn't be similar language an appellate court opinions. And and I think there is from time to time, read opinions where it's been noted by the writer for the appellate panel, that the legislature that Congress could certainly clarify this if it chose to do so or Wouldn't it be helpful if they did?

Stephen Breyer
I absolutely agree. I think that there is a

There are two things to

its it depends on how you put it and what the issue is. A long time ago, we Campbell was one of my colleagues on the first circuit pointed out, I've taken this to heart, but it's true of the Supreme Court to a judge as a person whom the Constitution gives considerable authority to, but in a very narrow area. When you are deciding the case in front of you, that's where your authority lies and where you must use tremendous care and where people who are the litigants will pay tremendous attention to what you say as they show it. And you In turn, have responsibilities to them and to the law. Once you stray outside that area, and express your view generally, on matters. People may listen politely, but they do not always necessarily consider you An expert. And and therefore you have to use caution in going beyond that area, which is not to say never express your view, particularly when you get into a matter. That is really a technical matter that should be improved. You're on very safe ground. I mean, Congress for God to legislate a statute of limitations in this matter. Let's say my goodness, the law here would be improved. If Congress could tell us the statute of limitations in this statute. You begin to go into more controversial areas, it's harder, but in

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
many examples in the Bankruptcy Law, where there is some real disparities, and it certainly doesn't hurt to point them out and say how helpful it would be if they were changed.

Stephen Breyer
Like we just we just had an opinion the last opinion of the term I think, involving the asbestos cases were both the majority and the descent said, my goodness, we hope Congress will ask in this area, but we expressed it as it is a hope.

Unknown Speaker
As a follow up to that,

Unknown Speaker
do you ever follow up later on and see your

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
thanks. So I mean, if the next time you get a case, you're going to look it up and see what they've done, if anything, if there are any changes,

Stephen Breyer
but there have been suggestions made, I think it's Brookings, and other places that that, that the Judicial Conference try to regularize. I think they have to a degree, a procedure so that appellate judges or district judges who find the technical flaws and statutes and so forth, can point them out. And that would be communicated because I think Congress is receptive to that.

Unknown Speaker
To go back to where we we began.

Unknown Speaker
How can we add, do you think we ought to try to bring more sunshine to the Supreme Court so that ordinary citizen Recognize Chief Justice Rehnquist as readily as they recognize Judge Judy, your judge walk

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
it by that you mean cameras in the courtroom? I don't see that happening right away. I do think that the public knows more about what goes on in the Supreme Court and in other courts of the United States than they do about what goes on in Congress, or in the White House. And why it's because we explain our thoughts in writing. And if we disagree, those disagreements are explained in writing, and they're published and they're available to the public. And there is no branch of government that is as open as their and giving their reasons each and every time for what we do. So I think there's a lot of sunshine and myself.

Stephen Breyer
I would add, despite all the I mean, there are many arguments on both sides of this, which I'm aware of and you are to in the Supreme Court is, of course, not a trial court. And to that extent, perhaps it's easier to have cameras. But in our court, and I didn't feel this way on the court of appeals, there is it does play a symbolic role. And my personal view, though, I can't prove it is that if we did have TV in our court room, it would then be in every corner. And it would be not only in civil cases, it would be in criminal cases. And it would be there for the witnesses and all of the problems of having an in criminal cases. Now, I specify that it's just my own view, and I can't prove it. But I think that that symbolic effect has to make us cautious as long as there is uncertainty in the lower courts about the criminal process.

Unknown Speaker
Justice O'Connor As a lawyer, I agree with you completely. I know much more about what goes on in supreme court because of the written opinions, then Congress or the executive branch. But I'm wondering if that's true for the average citizen who is not a lawyer and who does not read the opinions of the court. Could you comment on that?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, some decisions of the court received media attention, not all of it, sufficient to properly explain them to be impressed in public. But certainly, our cases got a lot more media attention probably than a court of appeals level normally, unless there's some particularly high profile issues. So there is some of that that goes on. But as Justice Breyer pointed out earlier, there's a need to educate every generation of young people about our system and the role of the courts and things that they need to know about it as well. And I think you do that more by speaking to school groups and publishing things from time to time that are in, in articles or books written for the student level, and that

Unknown Speaker
I think we all have the feeling that some good old fashioned civics needs to be taught in our schools. And we see in our local reporters, a lack of understanding of how cases get to the Supreme Court, they seem to say, well, they didn't grant appeal, and that this has been a decision on the merits. Yes. So there's a lot of work that probably lawyers and lower court judges could take upon themselves, right. What do you either if you have any last words before we close this very delightful conversation,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I do have one and it is just Thank all of you, Proctor hug and all of the judges, and participants, the lawyer representatives and others who participate in this Ninth Circuit conference for putting on a very interesting program over three days, and for welcoming your visitors such as Justice Brier and myself, with so much warm, and pleasure, and it's just a delight to see all of you. And it's also been a particular delight to me to have justice Briar here today. And on the other days of the conference, he participated each day in something and I think we've learned by his participation, quite an intelligent member of the party is and how charming is and how lucky we are to having among us on our bench at the court and thanks for coming.

Unknown Speaker
We're adjourned. Did I just want to say in closing, how lucky we all feel in the ninth circuit to our circuit justice.

Stephen Breyer
Here's some Supreme Court anniversaries for this month on September 7,