Unknown Speaker
Their stories of world war two Korea and Vietnam. Three members

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of the Supreme Court talked about the role of the judiciary at this event hosted by the American Bar Association. justices Stephen Brier,

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Sandra Day O'Connor and Anthony Kennedy spoke for just under an hour and a half.

Unknown Speaker
As we get in this part of the program, we're going to vary from oral questions to written questions. So I, as you

Stephen Breyer
hear the

Unknown Speaker
presentation and you have your questions, please write them down. And then when we asked for them, you can put your hand up and we'll pick them up. Justice Kennedy will need to leave slightly early. But and we will miss him but we will continue to there's the normal time at this time. You already know my great co our president American Bar and he will now introduced this program.

Unknown Speaker
Good afternoon, everyone.

Unknown Speaker
We are all in for a treat

Unknown Speaker
during the next 90 minutes. And while we're doing the technology here, let me offer it an observation and a question of all of you. The observation is this, I have to leave immediately after this panel to go to the airport. Because tomorrow morning at 8am, I'll be in Seattle, Washington addressing the judiciary on the way judges are selected in the state of Washington. So I won't have a chance to speak with you after I leave. My question to you is this after I pay respects to the people who have made this conference happen? I want to thank the steering committee that put this program together. I want to thank our donors and I I want to thank our rule of law partners all over the world who have made this such a success, in particular belied, where are you, Bill? Please stand.

Unknown Speaker
My question to you is,

Unknown Speaker
do you think this is a worthwhile conference? Me hear it.

Unknown Speaker
And should we do it again?

Unknown Speaker
Let me turn now to the program.

Unknown Speaker
I want to welcome you to a discussion of the role of judges in promoting and protecting the rule of law, at home and all over the world. It's my great honor and pleasure to introduce our panelists. There is deep commitment The part of the people you see on stage to the rule of law, Justice Sandra Day O'Connor, Justice Anthony Kennedy, Justice Stephen Brier and Judge Robert Henry. They have made and continue to make tireless efforts to protect the rule of law. And they have made an enormous difference. The ABA is very fortunate to have their support in our rule of law work around the world. As Justice O'Connor has said, and I quote her words, there is almost there is an almost universal desire to have an effective and fair legal and judicial system. People have the notion that there are some basic human rights and privileges and that they ought to be enforceable through some system and rule and judicial system that will make them real. Our four panelists have made invaluable contributions to realizing that vision when the history books are written about the rule of law promotion movement in the United States, Justice O'Connor's contributions will fill many pages. If she had only lent her good name to our early work, that gesture alone would have been an important boost to our initial efforts to engage the judiciary in rule of law promotion efforts in the former Soviet bloc and beyond. Instead, for 15 years, Justice O'Connor has been and remains one of ABA sillies most active board members, embracing the cause of the rule of law promotion, with passion, dynamism, and vision predictively her humility, generosity and ability to inspire have one over her judicial counterparts from around the world. She has never lost interest in the hard work of the rule of law promotion. Understanding it as a challenging, long term project and a vital one. Justice anthony kennedy joined the ABA Asia council upon its establishment in 1998. his support for in participation in the work of the ABA in Asia has been invaluable. his stature opens doors everywhere we go. The benefits of his thoughtful counsel and advice on programs have contributed greatly to their success. He has given up himself to build bridges with judges in ways that have made enormous contributions to the rule of law. Justice Stephen Brier has served as a member of the ABA in Latin America and Caribbean law initiative council since its creation nearly four years ago. We are grateful for the many times that he has hosted the council at the Supreme Court and for his involvement in developing a strategic plan focus and direction for the ABA, his rule of law work in Latin America and the Caribbean. He has given his time and traveling to meetings to speak with judges from the Americas, and to share his insight and support. his commitment to developing the rule of law in our hemisphere has been a source of strength and support in the ABS work in Latin America and the Caribbean. I am personally pleased that Justice O'Connor, Kennedy, ginsburg and Brier have accepted my invitation to serve as special advisors to the new board of the ABA center for rule of law initiatives, which will further the ABA international rule of law efforts in the coming years.

Michael Greco
Judge Robert Henry has graciously agreed to moderate today's session. Judge Henry was appointed to the United States Court of Appeals for the 10th circuit. In 1994. He served in the Oklahoma House of Representatives as attorney general of Oklahoma, and as dean and professor of law at the Oklahoma City University School of Law. In 2005. Chief Justice William Rehnquist appointed judge Henry as chair of the Judicial Conference Committee on international judicial relations. Judge Henry has represented the US judiciary, and delegations to several countries, and has hosted numerous international delegations as well. Last September, he was part of a delegation led by Justice Sandra Day O'Connor that represented the United States judiciary at the Arab judicial forum, which included jurors from more than a dozen nations in the region. I welcome all of you to this engaging panel discussion, and I thank the justices and judge Henry for their partners. patient in our symposium, and now I will turn it over to our moderator judge Henry. Thank you.

Robert Henry
Thank you President Greco, the International rule of law, what can be a more important, more timely, more fascinating topic. And the American Bar Association spared no expense or effort to assemble a distinguished panel to speak to you today? Unfortunately, that panel could not be here. And

we selected three

judges at random.

Justice Kennedy with his typical politeness impressions scheduled a tea party Tuesday, and we met with our many of our foreign colleagues who raise questions then that's why these papers are they've asked me to ask In addition, we'll be asking you to pass questions up and as we go through these will ask those as well. I did want to begin very quickly if I could, though, with an important quotation from the late Chief Justice Rehnquist, in a speech that an important speech he gave an American University in 1996. The framers of the United States Constitution came up with two quite original ideas, he said. The first was the idea of a chief executive who was not responsible to the legislature, as chief executives are under the parliamentary system. The second was the idea of an independent judiciary, with the authority to declare laws passed by Congress unconstitutional. The first idea has not been widely copied by other nations in the Western world. But the second idea that of an independent judiciary with the authority to finally interpret a written constitution has caught on with many other nations, particularly since the end of the second World War. It is one of the crown jewels of our system of government today. And he might have also mentioned that a by camera legislature has not been copied extremely widely. But he stressed that it was an independent judiciary with the authority to finally interpret a written constitution that has caught on. It's a rule of law thing. Justice O'Connor, I'm going to begin by propounding a compound question to you because I've never got to ask a compound question to a Supreme Court justice might

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
get a compound answer.

Robert Henry
I have had so many people come up to me and asked me to ask you, how did you get interested in rule of law work and this after that opening, I also want you to talk about the topic that you speak eloquently on every time I see you and that's the end of this. inside of the judiciary and foreign context,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
well, first, why that I get so involved in these rule of law efforts. It was with the breakup of the Soviet Union. And all of a sudden, there was this enormous part of the world that was breaking up and forming separate nation states, we ended up with about 26 of them being formed. And they had to decide what kind of governmental structure they wanted to have. It was just the most remarkable time in history, I don't think we will ever see anything like it again. And it was the idea of, I think, Sandy dAlembert and Homer Moyer on behalf of the American Bar, that we ought to volunteer as lawyers and judges in this country to help if any of these emerging states wanted some help, and they made some inquiries and what do you know, they did not help An effort was made to provide it and care was forthcoming by good hearted, well meaning lawyers and judges from across this country in the best American tradition of being volunteers, you know, that kind of sets us apart a little bit, frankly from many countries in that we have such a strong tradition of volunteer service here. And help was provided for the writing of constitutions, for writing codes for criminal law, bankruptcy, you name it, and for just setting up structures of governance that might work. Now what is the most important structure in a new government from the standpoint of a lawyer or a judge? It's an independent judiciary, one with qualified judges who are honest, decent, ethical, intelligent, and with the independence provided. Did for them by their Nations Charter to enable them to make fair decisions and not be afraid of following the law and being thrown out of office? Because they did that? So that's a short answer to both questions. Thank you,

Robert Henry
Justice Kennedy. What is the rule of law?

Anthony Kennedy
Piece of cake?

You know, I

cannot remember hearing the phrase rule of law when I was in law school. I think it's a phrase that has become current in the last 20 years or so it has, it resonates in PR, like I'm Tara, which is the phrase using the Magna Carta, the law of the land. And you can see references to it, particularly if judges are in trouble and say, Well, this is not the rule of law. But it's it's, it's it's a phrase that we ought to think about and ought to attempt to define, although I think you should define it at a high level of generality, just so that we don't get bogged down in all the details. I was asked that question once in China. And in China, it's often effective to tell an audience that something has three parts. And in Russia say my prayers trigger. Inside that little rule of law has three parts. Number one, the government is bound by the law. That, of course includes the court and through that you have judicial independent, the government is bound by the law. This probably reflects a large is just a corollary of the larger principle that the law must emanate from the people look at the law lives and the consciousness of the people. If you don't have that, you don't have it and it's a corollary The government is bound by the fact that the law must originate in the consciousness of the people and be sustained by the democratic process over time. That's number one, governments bound by the law. Number two, the law must treat all persons with equality, all persons in an equal man. And without attempting an exclusive list of prohibited classifications, you can give us some illustrated examples. Because those classifications those persons, those groups that can claim equal protection and that are discriminated against must be disclosed to us over the as the law of as time continues, we are bind to the injustices of our own times. So it would be unwise to have an excuse elusive list of those classifications that deserve equal protection. But illustrative of those classes are groups that are classified by race, color, ethnicity, gender, or religious beliefs. That's just a partial list. First, the government's panel was second, the law applies equally to all persons. For the law must recognize that in each person, there is a core of spirituality and dignity and humanity. And within that broad general formulation, you can begin to define those rights that are fundamental to our own humanity. And I will leave it at that because again, the definition of human rights or something that evolves over time as we begin to understand ourselves and the world around us, which is the duty of every generation to study a new.

Robert Henry
Thank you. Justice prior. Your recent book active Liberty has raised has resulted in some very favorable reviews. I don't know what they had. In the book, you acknowledge America's debt to the ancients, the foreign agents, the Greeks and the Romans and perhaps the near ancients, the French, the venerable Montesquieu, Benjamin constant and Britain, of course, and you talk about the people's right to an active and constant participation in collective power. And at the same time you talk about judicial modesty as a concomitant part of this. You are I know a student of modern constitutions. How is this active liberty of the

ancients, fairing

In modern constitutions, and how is judicial modesty fairing as well?

Stephen Breyer
I think within pretty broad limits, it's very pretty well, you want me to elaborate?

Robert Henry
If you don't mind,

Unknown Speaker
since you're here.

Stephen Breyer
The the point of that I'm trying to make in the book is really based on what Justice Kennedy said, elaborating from there, that there are two interesting ideas that are terribly important to us and to other people about the kind of rule of law that we want. And the first is why I call that ancient liberty the Greeks had a point besides showing historical area edition which some have found lacking. The The point is that the idea from ancient Greece on was one of the ideas upon which our constitution Ras and that is all Citizens now they had a rather limited idea of who those citizens were. And so did we, at the time of the founding, but still, those who were citizens would participate in the creation of the government and the laws under which they live. That's called democracy basically. And the constitution I think we all see, as a document, first and foremost, that creates democracy. That's the first idea. With the three of us. Were at a meeting at Mrs Annenberg where they were discussing what to teach high school students and tell me if I'm wrong about this, they had passed the bar associations and the A ally and other very, very good groups to say what was the main thing to teach listed in order of priority First Amendment and did to be the answer equal equality and they had way down on the lyst, something that surprised us to be that far down because to us, it's number one, number one, and we all said what is number one? This is what the Constitution is about. What it does first and foremost is create a structure of government. That is a democratic structure of government. Basically. That's the first idea. And we see that and that's why I say it's doing pretty well. We all see that there is no disagreement, I think, among judges or scholars or anybody on that one. That's the first thing. Now their boundaries. And that's the second thing. The boundaries really became very important just after the French Revolution, when people began to discover that if you let democrats or republicans i don't mean to be part of that. I mean, democracy isn't enough. Because acting under democracy, people can do terrible things. If they didn't know that at the time of the revolution in France, which They should have we certainly know it who are old enough to remember the mid 20th century. Second World War, it says, I need to point that out. But it's obvious. You cannot let even a majority trample very important rights of the minority. And that's the second part. And we've written a constitution that has that is the boundaries. Now sometimes we all argue like mad, but what are we arguing about? we're arguing about the precise nature of the boundary is this on this side or that side? We can disagree like mad over that. But that's implementing a system that creates boundaries protective of human rights, ensuring a degree of equality assuring a rule of law, ensuring division of power, boundaries, that within there is a democratic space. Those two types are of the are really I think, what the Constitution is about. And of course, the book, it says Let's not forget that first one. Let's not forget the importance of democracy is I think we, as judges can say, will tell you something from our experience. I don't know if you have to participate or don't participate. That's up to you as a person. But we can say, and I'll say that the constitution won't work if you don't participate, because the constitution for sees a citizen run country, ie a government that depends upon the active participation of the ordinary citizen.

Thanks the price. Thank you.

Robert Henry
The Chief Justice came by your tea, Justice Kennedy. And I wrote down what he said I thought it was very interesting and later some of the visitors came to me and asked me to pose this topic to you. He said it was not that long ago that this Place was an emerging democracy. And is it is important for us to appreciate that the values we hold dear came in great personal price. We want to do everything we can to support our brave compatriots in other lands. The topic is individual courage. And I want to let you all talk about that. But Justice O'Connor, I heard you speak about it in Wyoming. specific example, in Ukraine, and I wondered if you might talk about personal courage of judges.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Yeah. We really had an interesting situation in the world not too long ago, an example of judicial intelligence and, and courage and there was an election in Ukraine for Ukraine's highest elected position. And there were two competing candidates and the election was held and immediately there were allegations by The declared loser of widespread voter fraud and some of those were documented by election observers who had been there for the election. And a challenge was made in the courts and made its way to the Supreme Court of Ukraine or the whatever they call it Constitutional Court. I don't have there someone here from Ukraine who couldn't correct me on the proper title. And that court did a remarkable job. They held hearings over a period about five days, and they agreed to have it televised so that every citizen in Ukraine could listen to the arguments and hear the evidence being presented on both sides. And the court reached a conclusion that there had been voter fraud and declared that there had to be a new election. And because of the Think widespread opportunity for citizens of the country to see for themselves what the allegations were and how they were dealt with. There was acceptance of that decision and a new election was conducted and it altered the final outcome. But it was done without bloodshed in an area where it wasn't all clear that that necessarily would be the case. And I thought it was a very important milestone occurring in a relatively new nation state, one that had organized itself well enough to survive what could have been quite a crisis. Very impressive. I thought.

Anthony Kennedy
You know, the higher up you are on the judicial ladder, the less discretion you have in a sense

or even a law enforcement ladder, the most discretion with the police Officer is going to charge you a map and the state's attorney in the federal system, or district attorney, and then the trial judge. We're trying to get this to an epi appellate court that there's not that much discretion. And there's a lot of installation. We get criticized from time to time in the newspapers and one of my children have on Hey Dad, how you doing because they read this lousy article.

That's nothing there trial judges

worldwide, who have to live in the community after they've made an unpopular decision, that's hard. And there are judicial heroes throughout the world including in our own states where their elected judges and have to make unpopular decisions and they do and that's not written about and you know, all you know, those examples like I could repeat many, many of them. But if if we can foster a climate if if we can nurture The idea that there is such a thing, as a profession of judging as a commitment to judicial independence, and we can talk about what that means. And if people understand, then they will respect this thing we call the rule of law. They will respect the independence of the judiciary. But this is a matter of educated look at democracy is not inherited. You don't take a DNA test to see if you believe in freedom, it's taught. And you can't comprehend what you have never studied. You can't defend what you don't know. And we must do a better job of educating young people in this nation of people around the world with the essentials. And the requisites of what Stephen was talking about. In regards to a democracy being a structural was a structure where certain rules and I don't think we're doing a good job of educating our Young people, and I don't think we're doing, we could never do it enough. And I don't think we're doing enough in the rest of the world just as

Stephen Breyer
fire. What would I add to that? I'll add something that Justice Kennedy said that I quote a lot because it meant something to me at the time and still does. We were talking to a group of Russian judges about 10 years ago, the Russians, after all, remember, had what was called telephone justice, as they did in Eastern Europe, the telephone would ring it was the party boss saying decide this way or that way? And we'd heard them talk about why did we do that? And I said, It's obvious that our children needed the apartment, we needed the education. There's not too much choice. And they're trying to get over that. And that's why Justice O'Connor and you and others have gone to Eastern Europe to help them build institutions. And we were having dinner with some of the people who were trying to do it which isn't always easy for them, by any means. A lot harder than here. And What he said to that group rings a bell here, though. It said the the thing about judicial independence when you apply it, and when you take the decision independently, nobody will know whether you were or we're not. They won't know. But for you. I mean, the newspaper says how brave you were. I don't mean to sound cynical, but sometimes that means they like the result of your decision. The lawyers will they know the record, and you want to be true to that record, but they do have a view of it. And they do perhaps react in light of their advocacy. The other judges maybe it depends on how involved they were in the case. And ultimately, it can't be a question of whether the greatest civil rights groups in the world are the greatest wrong groups in the world or whoever they are. Say you're good or bad. Independent or not independent in here? And all the judges may know sometimes what you're going through. But they can't sympathize very well, either because it isn't them at you. And when you know, you know, and the problem of that that made a big impression. I think that's absolutely right. And I think the problem for all of us is to try to create those institutions, including here at home, where you get a pretty good assurance, that that's what will go on in your case, whether your case is the most minor thing in the world or the most major, whether it means a lot to your client, or only. And it's easy to say that it's important, and it's hard to do, the building of that institution.

Anthony Kennedy
And now judicial independence is such as judges almost overuse it if you were all a group of judges, not hundred percent judges, I'm here to talk about your digital independence applause about because it sounds somewhat like a kind of guild protectionism. But it's much more fundamental than that. Judges must be in or independent. Not so they can do is they choose their independent so they can do is they must. And and we have to do a better job of

Stephen Breyer
that I'll give you an example this one the hour, can I give an example this is sort of funny in a certain way, because I'll sometimes as you may or may not realize, say something that I think, to myself is uproariously funding, or at least meant in a comic way, and the audience might not understand it. So we were talking at one of these groups of the Bar Association, and there were some judges there from a different country I'll not say which, and they're talking about judicial independence, which mostly meant salary increases, which can mean here too. But the but the, the, the point was, they're going on about it and, and I said that, well, I know it's really hard, but to build that independent institution, I think It's hard for you, the judge to tell the public how important it is because the public thinks, of course, you think it's important, it's your job. You got to get other groups to do it. And the other groups have to explain why it's important to people who aren't judges who aren't lawyers. You know, the public, why do they benefit from it that it's hard to explain? There are only two people who can do it one of the I said they're both such pests really, you just get so annoyed at them because they do so many things that irritate you. The first is the press. I said, I know they're trouble, but they have to be listed in this and you have to have the free press or you won't get what you want. The other I said is the bar those lawyers can be very difficult sometimes. But I but basically you need the bar because they're the only ones who understand it. They're the only ones who understand it who can explain it. So remember that a free bar and a free press so the other person gets up the from the other countries justice. bribery is completely right. The press and the bar are terrible pests?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, judicial independence really is sort of hard to define because judges can be subject to discipline for legitimate reasons. And the political branches, of course, control correctly to some degree, both the jurisdiction and the political makeup of most courts and most countries. And on the other hand, I'll coin a phrase. I know judicial independence when I see it. And during just suppose that during a period of stormy relations between the White House and the Chief Justice, the President's bodyguards kill the chief justice as Pat cap. Or suppose the executive branch threatened to cut the water supply The Supreme Court building to prevent the court from meeting and making anti precedential statements are suppose the Council of Ministers tried to evict the Constitutional Court from its offices. Now, the first two events actually happened in the early to mid 1990s, in Russia, under yeltsin. And the third happened in Bulgaria in 1995. Now, I think we can all agree that those are examples of judicial independence. And judicial independence just doesn't happen all by itself. It's very hard to create. And it's easier than most people imagine to destroy. I mean, we faced certain issues in this country today by various members of our nation's legislative branch, suggesting a number of ways to strip courts of jurisdiction. Perhaps have mass impeachment and all kinds of criticisms that don't suggest a wide open notion of judicial independence. So this is not easy, either here or in any other country of the world.

Anthony Kennedy
But but the BB must also insist that judges be held to a certain standard. That's right just must give reasons for what they do. I sometimes say we're the only branch of the government that has to give reasons for what we do. And the bar has some very special duties with reference to the judiciary, and both Justice Breyer and Justice O'Connor have indicated that lots of people think judges have a lot of political clout, once they get on the bench they don't. And we really rely First of all, members of the bar to defend the judiciary when it's under attack. This is a little easier in the Anglo American legal system than in other systems. And in our system is, as you know, in our tradition, judges are selected from the ranks of the practicing bar. And that gives us a built in bond and affinity and affection over time. And, and there's this this close relation and we can rely on the bar to defend us when judicial win independence is under attack in other countries, as you all know, many better than I because you're from the host country. You elected judicial career very, very early. After after you finished your education and you go to separate tracks, you're going to be a judge or an attorney for the rest of your professional life. And in those countries, I think it's important that we do a lot more work to impress upon both bench and bar, that they are allies, not competitors. They are working in a single cause, which is the justice, which is the cause of the root cause of independence. And there are bar associations around the world that I think we should begin to work with, and have them meet with their judges and discuss problems of common concern and to address mutual mutual problems. I think we can do much more in that regard. Judge Henry than then then then we're doing.

Robert Henry
Thank you. If someone wants to, began to bring me some of the cards, I would appreciate that. Justice O'Connor, one of the things you mentioned, brought up another topic that our visitors wanted us to talk about, and that is judicial discipline, and codes of conduct. I wonder if you might, you mentioned that in your remarks, I wondered if you might give us your views on how important the Code of Conduct is and what it can do to develop the authority and independent of the judiciary,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
it is pretty critical at all court levels to have codes and judicial conduct so that the judges serving in in those courts have a clear understanding of conduct that is acceptable and conduct that isn't. And it can be particularly challenging in newly formed countries or countries where a certain amount of telephone justice has occurred or a certain level of corruption has been going on for some time. And it is crucial to get a code drafted telling judges what is n is not acceptable. And set up committees of people who can enforce violations of the code can call judges to account when a complaint is made. And when they determine that there has been a violation. I think it makes a tremendous difference in enabling the public of the nation to have a little bit of confidence in the impartiality and the fairness and integrity of the judges that are serving

Anthony Kennedy
just as Brian and I.

And just kind of you were actually there the day before we were with a judges. And we were talking about judicial ethics and in judicial discipline, judicial codes of conduct. And we explained that there's there's some very simple their basic rules, you don't have ex parte a context where the judge talks to one attorney without the knowledge of the other. You You do not sit in cases where you will you have conflicts is very, very simple, simple, basic, rudimentary rules. And we talked about this for an hour and then I answer any questions and a judge stood up and he has a friend of mine from another The country said, Jason prior to this is Kenny, thank you very much for speaking with us about these things. There's not one suggestion not one preset, not one principle that you've mentioned, that we disagree with, we don't long for to which we don't Aspire. But the culture of my country just will not allow that. Well, it was one of those moments where you have in a meeting where everybody's quiet, they're looking to you for an answer, defining moment. And I just I wasn't sure what to say. All I could say is judge, this must change. The rule of law is on the line. You cannot wait. Hoping that a judicial independence, judicial and independent judiciary will emerge out of an atmosphere of corruption, you must change it and you must change it now. If you're going to defend the rule.

Stephen Breyer
Yeah, one of the things it's not popular abroad, and it's not popular at home, but it's I think it's absolutely necessary until often the judges just in respect to that, that we fill out these forms every year. And it's expensive to do because you have to hire an accountant probably. And those forms report every single penny No, there are no loopholes in it. Every single penny that I earn or my wife earns from or gets from any source whatsoever of income or the minor children and all the assets that you have. So they can be compared year by year. And there is no way given those forms. But some surreptitious form of income could come through to benefit the judge. Are they impressed? Yes, they're expensive. And they put in the newspaper how much money they guess you have by multiplying the top of every category. And nobody likes that. Nobody likes it. And they're right not for like it, but they're wrong to oppose, because I think it is absolutely necessary. To have those kinds of assurances through the press that there and you have to that there is not dishonesty going on within the judiciary. And there are prosecutions of judges from time to time. And you have to tow lines that the public sees there are those checks in play, as well as the ethical rules, as well as the reasons for the opinion, I think all help to assure a public that this can be an institution that can be trusted with independence.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I think regular financial disclosure is a very important tool. And yet there are some countries in the former area of Eastern Europe, which had experienced so much unfortunate invasion of privacy during totalitarian eras that their constitutions protect privacy to such a degree that they are unable to read. require financial disclosure, which I think makes it pretty tough. I do have some questions.

Robert Henry
I do have some questions.

Unknown Speaker
Okay, I got a lifetime job. That's okay.

Robert Henry
Some of these are on oil prices. No. No.

Here's one you don't often get. Do you have any views on the significance to a discussion on the rule of law of such historical documents as the code of Hammurabi and the Edict of Cyrus?

Unknown Speaker
I was reading it last night.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Oh, gosh, well, I think we're deep on a rock and that's where the code of Hammurabi can be found. And we actually have taken a look or two at bat recently and just out of historical interest, but I think can say we looked at the

Anthony Kennedy
it's a deep seated desire of a human organized Islam her his or her society. And we were very fortunate. There was congruence of factors at the time of the founding. And I teach constitutional law I sometimes ask any students that they read the constitution cover to cover and they usually say no I said well if you do it, it's one of the great documents in history of human thought. If you do it your mind will wander you can't read it cover to cover without your mind one. But if you go to specific portions of it, you can learn and it is a brilliant, the Declaration of Independence you can read through cover to cover it was designed to be read to the troops to get them angry at King George and the matter the longer you read the matter you get it and and both of these documents are different one is to instill with you Passion for freedom, others to make freedom.

Stephen Breyer
Cyrus?

I myself am not an original list.

Robert Henry
very ancient liberty.

Is it possible to reform a judicial system that is corrupt without changing the people? Do they ever see the light?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, they could. Obviously it depends on the person. It's just like finding people who were other offenders of the law and you take correct you find them responsible and suggest ways of education and training and sometimes they turn around so it could happen with judges as well. And I would think that would happen if the country installed a pretty good code of ethics with teeth and started enforcing it. I think that could happen.

Anthony Kennedy
Part of the part of the problem, as many of you know, practice in other countries is that there there is, it's part of the economics of being a judge that you get money from outside sources. And this is wrong when, when we go to different countries, I like to meet with legislators, as well as judges. And I tell them that you must appropriate resources for your judiciary, because the judiciary and the legal system are part of the capital infrastructure. Now your legislator, and judges can say we are salaries and we need more judges and we need courthouse and when you court, you need schools, roads hospital, you've got people that are hungry. And you go back and you tell your constituents Well, I voted for a lot of money for the judiciary, that's not an easy sell. So it must be understood. That judiciary is part of the capital infrastructure. It's as important as roads and bridges and utilities and schools. You can't have a progressive society without a stable rule of law without a functioning efficient judicial system.

Robert Henry
Justice prior, that's what it says here.

Where do you consider Latin America will slash should go in the 21st century and developing a rule of law? How should the legal profession in the Americas contribute?

Stephen Breyer
It's a good question. I thought, because I know

Mondo scousers here are people from wallet committee and we've been working to try to answer that question. And the reason I think it's very interesting, important and difficult when it most general levels what Alan Greenspan said that most of the countries of the world indeed all of them want to have a rule of law for two basic reasons more and more, they've realized that a rule of law means not just human rights, it means also contract law. It means also, but maybe when you invest, you have a neutral arbitrator who's called Judge, you can get your investment back if you're entitled to it. And it isn't going to be decided politically. And the more you can assure that kind of institution, the more you'll get the investment and the more prosperous people will be prosperity. And of course it does include human rights as prosperity and liberty. So those are the two slogans which are more than slogans. How do you get there and Latin America my personal view I wouldn't is is that they find it difficult in part because they see two separate systems. Most of them have codes. Most of them base their law upon the code Napoleon, which was all over continental Europe, and came to Latin America. And they also want the kinds of protections that you can find in some separation of powers, independent prosecutors, and protection of basic human rights and an independent judiciary, which is problem predominantly found in Britain, the United States. Now how to combine those things. My own view is they have to be combined. And I don't have the answer your to any Bry. But few of us have the answer for any single other nation. I think what we're trying to do is to give those who are in those countries, judges and others, an opportunity to learn something about our system. And I would say also learn something about the systems in Spain and France, continental Europe, so that you can go back and figure out what works best for you is we don't know the answer to that question. Our current effort if I can have 15 seconds of advertising over in the wallet committee is to try to see if in Puerto Rico, we might be able to establish an institution that helps to do that with teachers from Europe, as well as the United States and a potential audience of, of Latin American judges, because there you have this mix of the Spanish language and English and the Spanish culture, Latin American culture as well as that of the United States. There, I think that is the direction. And the more we say it's just us. I think the more wrong we are. The more it we say, you have to learn enough from several systems so that you can figure out what's going to get you that prosperity and protection of liberty that you want. I think the better off we are. But Stephen, don't don't don't use

Anthony Kennedy
Don't you see, particularly in Europe being the example and I think it will soon be evidence ethnic. There's a convergence of code system codification systems with an a structure of a transnational human rights doctrine documents or basic constitutional documents, which are interpreted by an independent judiciary to elaborate rights. These two systems are merging.

Stephen Breyer
I did go to a conference in France, which I found very interesting actually, as well as enjoyable but I sat there for a day and listen to a lot of speeches, which are the various judges came here about the 200th anniversary of the Civil Code. Which is really like the constitution embodying all kinds of basic values of great importance. At the end of this quite long set of speeches, they had a few questions. person got a man got up from the audience, three questions were asked. And the second one is very relevant to what you said. The first question, of course, we could have heard anywhere. He said this code has been modified to embody the equal status of women. So why is it over a day and a half? We haven't seen one woman. So that's a question I could get in Boston or Washington or anywhere else. Second question. The same, I could find it anywhere. We say just would you said, but we're not certain what to do. I mean, our friends system is now only one of several and these several more and more are necessary to the business people in our country for example, and are we supposed to refine our code. Are we supposed to try to integrate that code with a European code from different nations? Are we supposed to write a new European code from scratch? What should we do? But so the tendency is there? And the answer is not clear. And we find similar. How do we integrate in commercial cases, a large amount of foreign law and integrated into the hands of the students who will become the lawyers who will have to have those cases where American law alone is not going to give them the answer they want. And the third question, of course, I'll simply repeat because we all believe it. And that was the question. She said, Well, how are we going to teach these values? And by that I think the Westerners certainly meant that human liberty and the basic fairness and so forth of that Napoleonic code of 200 years ago, how are we going to transmit them to our children? My goodness, that's a question. We face all the time. So I said I could have heard those questions in Paris. I could have heard them in Des Moines, or Boston, or probably anywhere. And those are the ones that you have these conferences not to answer but to get people working on them.

Robert Henry
Here's one you can knock out of the park. A recent article in The New York Times suggested that all justices and judges have one common denominator, baseball. Please explain to a non American

Anthony Kennedy
subject I want to change the rules and the rules of baseball and it's almost as hard as changing the Constitution of the United States. I mean,

Stephen Breyer
I don't think I can explain it to a non American. I think you

just watch the game.

Robert Henry
Noah Feldman says American baseball is a non mobile concept.

Anthony Kennedy
So

Robert Henry
Justice O'Connor.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, now I did it move to Japan, to Cuba, lots of countries. And not that I'm just the strongest baseball fan in the world. But I do think that baseball players are the best athletes in the world because they have to run fast. They have to throw they have to catch they have to make instant decisions. And it's pretty impressive all put together.

Robert Henry
Any other concurrence is descends on that.

for Justice O'Connor fundamentally the role of the Justices of the Supreme Court in the Philippines in promoting the rule of law and deciding cases in accordance with the Constitution and the law involved. That is the role as a woman magistrate of the highest court in this country. I would like to know some of your experiences. Is kindly give me advice or suggestions on how women can enhance their abilities to promote the rule of law in higher courts?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, of course, I think there ought to be women on all courts at all levels in all countries, St.

Women constitute a little over half the population of most nations in the world today. And to the extent that we're living in democratic societies, I think it gives the public more confidence to look at their nations major institutions, including courts, and to see that there are women on those courts and other governmental institutions. I think it is a factor of importance in having citizens Have some faith and trust in the institutions serving them. And how do you get there? You just have to work hard to do a good job and be noticed in whatever you're doing. Before you ever are selected or considered for that office, I don't think it's necessarily easy in every culture for women to make that progress. And we see parts of the world today where there are very few women in office and my heart goes out to them. Frankly, I would like for every nation to have decent representation of women, and I hope that we can all reach out and offer suggestions and help around the globe to make that happen.

Robert Henry
Justice O'Connor praised the Ukrainian court for showing its hearings on TV. Would there be a similar benefit in public respect for America system Law. If the US Supreme Court I
Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
knew that was a bad thing, because there are those in this country who think that there should be no increase in pay for judges in this country until there's TV on all the courts, including earth. And there is some debate among judges in this country about the desirability of television cameras in the courtroom. But there are times and places where I think it can be very helpful and Ukraine was a perfect example. I don't think in this country there is a total consensus is yet on having cameras and all courts. I most of you probably saw that criminal trial in Los Angeles, involving a prominent sports figure. And it went on for weeks if not months, and was shown around the world because the trial judge had the camera in the courtroom. I thought it was pretty sad. I was very uncomfortable with it.

Anthony Kennedy
Well, sometimes if the system is flawed that people ought to know it. And if TV shows a flawed system,

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
well, we start there soon.

Anthony Kennedy
But TV can be a teacher. And if we're going to have a debate on TV in the courtroom, and and you drew the affirmative side of the debate, you could make probably more positive points. And we sometimes wish lawyers were better prepared or they haven't they haven't seen our they haven't seen us at work. If they had a video, tape or DVD that they could they could see it, so you can make a lot of arguments for it. But remember, by not having the press in the courtroom, we also teach. We teach that our court is based on the reasons that we give in our opinion, we will be judged by what's in those opinions on the books around or our timeline or length Our grammar or ethnic chronology, our dynamic are different from the political branches not better, worse, different? Well, I can and by keeping the TV out, you teach that.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
We do have the press in the courtroom. They're sitting right there taking notes. We also have audio tapes made of every word spoken in the courtroom. So it's not that the press isn't there, but they are. But we don't have cameras yet in our court, although in many courts around our country,

Anthony Kennedy
there are a number of people who want to make us part of the national Entertainment Network.

Stephen Breyer
Right, it's actually pretty difficult question for me is there are things to be said for to which were set of the very, as a teaching thing, I think of that term limits case that we had, which was such a difficult case. Hamilton's on one side or marshals on the other and Madison says one thing, you go back to history and then you look at up to date. And it's it's it's really an evenly balanced case. And the judges are all up there trying to figure out how to get to a right answer be wonderful, I think for the court if people saw that, and and also you do have the problem of uncovering things on the one side. But then I think what bothers many people, at least me, on the other side, is that if we were in the Supreme Court, I think it would become a symbol for every court, and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, and when I start thinking about I don't want them thinking how they look to their neighbors and jurors, right, I think about that. And I do think about the oj simpson case. And I think I'm not certain I would vote in favor of having it in every criminal trial in the country. And then I also think a problem in the appellate court is that when we decide something, it's decided for millions of people, of the millions of people who will be affected. Only two or three are actually there in the form of parties. And when somebody watches something on TV, they tend to identify with the individuals in front of them, and the human story before them, and not the boring legal issue that affects millions of people who are not on that screen. I'm not saying that that's determinative. I'm saying those things are negative features of having TV in the Supreme Court, as well as the fact of course that 98% in a case is in writing oral arguments 2% or 5% that everybody would think the office now if you have some things for it, and some things against it. How would I proceed? Slowly, right? Correct. And I've said 50 times on TV as I see is here today. I said look, if I if I being an old teacher, I would say to those who wanted since They want to change the status quo. To get some neutral facts, there are plenty of places that have it plenty who don't there are people who are not paid by the networks are paid by the press that are called neutral research institutes. So let's look at public attitudes. Let's see, if the concerns of those who don't want it can be shown to be valid or invalid. Let's do a little work before deciding the things just as a matter of principle, because principle here has to overcome an obstacle. And the obstacle is I believe that each one of us on the Supreme Court, the United States really thinks that he is a trustee for a marvelous institution on which the public depends which neither he nor she created. I didn't write Brown versus Board of Education. I wasn't on the court, the desegregated America that abolished that rule of law that was so vicious But the courts reputation today, and its acceptance depends on those other people. Every day we see in front of us every day. I've said this 5 million times. So I might as well say at 5 million and what we see men and women of every race, every religion, every point of view, we've come into our court to resolve their differences under law that's taken 200 years it's taken a civil war is taken 80 years of segregation. It's taken paratroopers in Arkansas to take the black children into the white school. It's taken our law, and we are trustees of that institution. And none of us, I think, wants to do anything to harm that institution. irrespective of what kind of slogan you can give for one side or the other. And therefore, I'd say, generalizing from my own experience, a decision of this issue This kind of issue, which carries with it threats to that institution, as well as benefits should be decided, after really pretty serious research and study and not decided on the basis of something that happens to strike somebody two minutes in a conversation. And that goes, by the way for me as well as for everybody else.

Robert Henry
Justice buyer noted that Americans argue heatedly over the contours and something of the Constitution. But all Americans see the Constitution is sacred almost in a religious way. Why is that? And isn't that the essence of what we call the rule of law?

Anthony Kennedy
But I was Poland and a student judge. judge said how do you keep the constitution for a long Time, very important for Poland. They only had this for a few years. And I wasn't sure how to answer the question. And I, I said ultimately the people have to come to revere their constitution. Now America is very fortunate, because there were congruence of there was a congruence of factors. When we declared our independence, we said we wanted one freedom, and the people in England and Western Europe says what freedom? What are the Americans talking about you? There's nothing you can do with those people on that side of the Atlantic, they have all the land they want, they can do what they want, pay taxes when they want, not when they don't want. And so we had to give them an answer back it affects them and answered it so that we could justify the revolution. And the answer was first of the Declaration and then in the Constitution. We use the constitution To define the meaning of our own existence as a nation. Americans come from many backgrounds, from many countries. But in large part they define themselves in one people because of the Constitution. And that's a that's a felicitous priceless link that America has with its constitution and we and we must never sever that link, we must burn injury. And it's very, very fortunate that American identify selves constitution, and that's a strength. And that's our strength.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
I was just going to point out that one reason our Constitution has survived so long as because it's so small, there it is. Look at that. And every American can pick up this little document, read it and understand it and it's only Okay, I do you remember when the European Union tried to write a so called constitution? I think it was about 450 pages long now, and then people were expected to vote on it. How could you? So I think brevity has been great. And it dealt only with structure until the framers were told if you don't include some fundamental rights in there, we won't vote in favor of it. So we got the first 10 amendments, the Bill of Rights, and that's what people respect and admire and have grown to know and understand. And it worked pretty well. I if if a constitution gets long and complicated, it's going to be amended often and it no longer becomes that treasure little charter that might survive and this

Anthony Kennedy
One of the things that court does is to explain that the Constitution has relevance in the context of your own time.

The flag that places the flag burning takes

was it was a case in which Americans get infuriated when you burn their flag. We have a beautiful flag, the transcendent symbol of national unity. And we had a case where the people were put in jail for they burn the flag. And I thought this was a great teaching case. It teaches that the Constitution has meaning in your own time. And I remember we are we talked on the court before we issued the decision how unpopular would be in 90 senators went on the floor of the Senate to denounce the decision.

But over time, there was a

quiet reflection. And people said, you know that that constitution means something to me that Got this first amendment, the government can't take away my rights speech. And it was just like when Givens versus Ogden, one of the popular decisions in the Marshall court, steamboat fares all over the Atlantic dropped after Givens vs. Oregon. And people said that's that constitution up there has something, something to do with me. And so we must never forget to teach Americans, particularly young people that the Constitution has a meaning. Now.

Robert Henry
I'm trying to some of these questions are really not on the topic, and I will I'll answer those after the meeting. When you have a judicial system that is both corrupt and not independent, can you solve both problems at once? Or do you have to address one before the other, both corrupt and not independent?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Don't know how to answer that I think you want to tackle the whole business. And try to get a system that would affect the selection of judges more favorably. And try to build in a structure and a little education for the nation as a whole. On what we mean by judicial independence. It has both an institutional component and an individual welcome. You want judges who aren't just free to go do any crazy thing in the world are bound by that text and the Constitution and the law. And they're bound to apply it fairly and I'm personally but individual independence means that a judge can freely resolve questions based on the constitution and laws of the country without fear of reprisal if it ends up being an unpopular decision. They won't find their pet cat murdered or their salary diminished. The next day, or their apartment taken away, and institutional independence in the sense that the other branches of government understand that the judicial branch is separate and empowered, and may make decisions that at times, the other branches don't particularly like. And that's so hard to do. I mean it, these things don't happen. Naturally, it gets the result of a tremendous amount of effort by citizens in our country to embody these principles in their nations laws and the Constitution and then to make them work. There are some

Anthony Kennedy
models, and this is not precise. And I'm talking about South Africa, not because the judiciary was corrupt, but the lack of respect because it was chosen under the rules of apartheid. What do you do to dismiss all of them and start all over that you don't have the resources you need judges So what was done in South Africa as they kept that system, but then they created a new court as a superstructure. That that was that was mama that doesn't necessarily part of the corrupt.

Robert Henry
What can concerned citizens do to encourage popular analysis of judicial decisions on the basis of the legal principles at issue, rather than the presumed political or partisan orientation of the judges?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I think you have to hope that you have some intelligent media reporters to interpret decisions for the general public. And we don't always have that, although I think we're blessed with having a few here, but that's certainly an important component

Anthony Kennedy
with newspapers do a fairly good job of reporting what we do, not why we do it, and I understand that because they're short timeline news today. So I think the reporters by and large, given their timeline, what I can understand is why editorial writers for major newspapers in major cities that are proximate to us will write an editorial without reading the opinion. And it happens all the time. baffled by

Stephen Breyer
I think that there is there are things to do there. Namely, the bar being organized, you can help one in two ways. I think one way, at least if we're talking about the Supreme Court and Thomas was arranged is to meet occasionally with the newspaper, editorial board, or the editors of the local paper and encourage them first to have reporters who develop a little expertise in the area. I think the difference in our court between a full time reporter I say everyone thinks they do a good job. They're there all the time they understand it. You read pretty much in the Washington Post and the New York Times and some other ones where they have good reporters. I think you read what's going on, in my opinion, pretty much. And by the way, if I think it's not what I say only pretty much because I think wasn't quite right. I think it's the times maybe they're right, nine wrong. I mean, you know, they're, they do a good job if they're professionals. And and if they, for reasons that the economy is happens more and more, they cut that full time, legal expertise, and SEO will give it to the person who covers terrorism. After all, there's a lot of terrorism cases. Well, I think that's goodbye to the kind of analysis that I would like to think the public should understand. So I think the bar can be helpful in that and just saying recover it. We're not saying anything about the words just Cover it properly. And I also think they can be very helpful in making certain that judges in this context or maybe just lawyers, sometimes talk to the local papers about the nature of the judicial institution. Sure, I can't tell you how, what positive responses we get sometimes not because of the words that come out of our mouths, but rather because they see what we're trying to do with only from attitude. And and people aren't prepared to understand that there are institutions called judicial institutions that do try to approach these questions without a political content. Today, they don't understand that and and the bark and explain it to the reporters and show show the and then of course, you can set up ways of explaining particular cases that they may develop trust in, and if they do, they'll have a better understanding of what the case was about, but I underline all this that that I think members of the bar and bar associations can play a very important role in helping with public understanding in this respect.

Robert Henry
I have one more question for the two of you, but we need to let Justice Kennedy go, I'd like to present you with this watch.

What I do think we need to thank justice Getty he has a speech that he has to go.

I hold in my hand the last question.

I think this is really important and I want to hear the answer. Particularly