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

Now first of all, we have to get everybody seated, 'cause I'm going to be at this for a while there's a chair there and there's one over there. Need to there's another one here. But I'm to work, right. So it's Law Day today, May 1. May 1 was celebrated in the former Soviet Union as a day to remember the ascendancy of the Communist Party there. And perhaps it was in reaction to that, that we started celebrating May 1 as Law Day in this country. And it's become a day that we care about, at least in the legal profession we do. And I hope other citizens do too, because it does give us an opportunity to talk about the role of law in our society, the role of courts and a fair judicial system. And that's what I'm involved in, in my work today. And it didn't start out that way. I was told you might like to know how I started out. I grew up on a cattle ranch in the dry, arid Southwest, it was half in Arizona and half a New Mexico we straddle the state line. And the ranch was quite remote we were 35 miles from and it was a life built around the small group of people who ran the ranch my parents and the people who were there. And we were not many in numbers. And the people who work there, the Cowboys tended to be single man who spent their whole lives there. We had at least four who stayed until their ultimate death as old man and spent respectively something like 70 years, they're over 50 in three other cases.

So it was a small knit group that tried to earn a living. Under pretty tough circumstances out there, we didn't have much rain and everything we did required having a little rain so the grass would go grow, so the cattle would have something to eat. That was our concern, keeping the cattle alive and healthy, and eking out an existence in that very remote place. When it came time for me to go to school. There wasn't a local school nearby. So I had grandparents living in El Paso, Texas some 200 miles away, they were willing to take on a grandchild. So I lived with grandparents from kindergarten through high school, which I had in El Paso, Texas. And I would come back to the ranch for Christmas and spring breaks and summers. And was homesick the whole time I was in El Paso because the ranch was my life. And it was a great life in a way. I wanted to be a cattle rancher when I grew up. I didn't know many women, cattle ranchers actually. And it takes considerable money to be able to buy the property to have a ranch. And I didn't see that I was going to have that kind of capital. So that didn't look too promising for a career. I was admitted to Stanford University in California, and I went there as an undergraduate. I was pretty young, when I went off to college, I was 16. And I must say I hadn't had a very good high school education. I suspect that each of you has had a much better education than I had in high school. Because I know that Gonzaga tries to provide a very fine high school education. And so I felt pretty ill prepared when I landed at Stanford. And we were on the quarter system there, we would have classes for three months, and then final exams, and then three more months, and finals and so on.

Over a nine month stretch. And the first quarter, we were having our exams after we returned from Christmas vacation, which was a little frightening, because you might forget all the things you needed to know for exams by the time you got back. But anyway, after the first quarter, and we had exams, I went into the dormitory where I was living in there was a message to go to the director of the dormitory to discuss something and I thought, Oh my gosh, I've been kicked out. I didn't make I flunked out. And it was a terrifying moment in my life. It turned out that I was on the Dean's list. And no one could have been more surprised than I because I knew I didn't know anything. And so it was a great relief. And I tried to apply myself to my studies at Stanford. And my third year at Stanford, there was a class offered for undergraduate students by member of the Law Faculty, and it was open to undergraduates. And it was some kind of a get acquainted with law class business law. I don't know what they called it. But I took the class. And it was taught by a marvelous professor named Harry Rathbun. And I think everyone in life can probably point to some particular teacher or professor, that you had somewhere along the way, that turned a light on in you, or sparked something in your heart or mind that made you want to do something with your life. And that Professor did that for me. And I remember it so clearly. And what he tried to teach us was that the individual can make a difference in life, that every single one of us if we really care about something, and really want to help to solve a problem, or make a difference, can be effective in doing something. I had never heard that before. It was a new concept. But I thought one reason that he was able to touch his students as he did was because he had had legal training. He was such a wonderful advocate. He was very persuasive. And I just thought that he had part of those qualities because of his legal training. I didn't know lawyers, I just knew ranchers and cowboys and cattle people.

And so I decided to apply to Stanford Law School for admission. And I finished my major in three years. And so I had a whole year when I could take classes. And the law school occasionally was willing to admit people early, and let them have their fourth undergraduate year as the first year of law school. So I applied. And to my great surprise, Stanford admitted me in the law school. And I really didn't know anything about law school would teach. I went in very ignorant one of my first year classes was torts. And I used to think that tort was some kind of cake you bought in a bakery. So I learned otherwise. And it was a fascinating experience to go to law school. And all of a sudden, I began to understand why people did things the way they did, it was because we were governed under a network of laws, and that we had a legal system and a judicial system in place to enforce those laws. And the world began to make a little more sense to me. It was very stimulating, because the professors would teach classes, often by asking the students questions, it was the so called Socratic method. Is that done here at Gonzaga? A good deal? Yes, I see some heads nodding. It's pretty effective, because you're scared to go to class, if you're not prepared, you might get called on. And it does make you think and make you think on the spot, and on your feet as it were. So we had lot of exposure to that in law school, my classmates tended to be in those days, considerably older than I was, they were almost all male. There were only five women in the law school at that time. And my classmates, for the most part had been in the military and World War Two. And they were coming back to the country after several years of service, some of them with very vivid and tragic experiences in their military careers. They had seen life in a way that I had not. And they were ready to come back to this country and to learn something and to get to work. They felt like they given enough their lives, as it was, and they were anxious to, in many cases, be married, have families and get to work as lawyers. So they were very serious about the study of law. But they were good students.

And it was a wonderful experience to go to law school. And I finished in law school and did well in school in my ranking. And there were all these notices on the bulletin board outside at the law school, asking the Stanford Law graduates to apply to apply to law firms in California to be to get jobs. And I applied, I sent resumes and made phone calls, and I didn't get any invitations for interviews. And I began to think that was sort of strange. And I finally asked a friend of mine, at Stanford, whose father was a partner in a major California law firm, if her father could get an interview for me and the law firm. And he did. And I made a trip to Los Angeles to talk to the interviewing partner. And we had a little chat for a while. And finally he said, Well, Miss day, how do you type? And I said, Well, just so so, you know, fair I can get by, but nothing special. And he said, Well, if you type well enough, I might be able to get you a job here as a legal secretary. But Miss day, we've never hired a woman as an attorney. And we don't see the day when we will. So that was the best offer I had in the private sector. And it wasn't fun I wanted. And I had to kind of scramble to get my first job as a lawyer, my husband, john over here, and I were planning to be married. And we knew that we would like to eat, he was still in law school, and one of us had to work. So that was going to be me for a while. And I really needed a job.

I finally talked the district attorney of San Mateo County into letting me work at his office. He was a very nice man. He had once hired a woman lawyer in his office, and I thought if he could have one, he can have another. And so I went to see him. And he said, Well, yes, I'd be glad to consider you. But I don't have a vacancy, and I don't have any office space. Now, I was really desperate. So I said, Well, okay, what I think I'd really like to work here. And I think I can help you. And I'll just volunteer, I'll work without pay. And I'll sit in your secretary's office, if she'll let me until you have room for me? Well, I think he kind of go and said, All right. And so he took me on in that capacity. And I hadn't been there very long, when he was appointed a trial judge in the county. And that left his position vape and which was then failed by my supervisor, and that left that position, vacant and on down. So I got a bonafide a position, and a real office, and I was often running, but it was in the area of public service. And I loved it, it was great. My classmates, the male ones who had been able to get jobs from their Stanford Law School training, were, for the most part working in private law firms. And they were just doing the research and work on depositions, and just the grind work of a young lawyer in a big firm. And also, on the other hand, with my hard one job, was able to represent county boards and agencies and commissions and address problems that I thought were really interesting. And that mattered to the county. And it was just terrific. And I felt that I had more responsibility than my classmates who had had less difficulty in getting a job. So I was very happy in the field of public service. And I have spent most of my life in that field. Not all.

I hadn't been working too long before my husband was drafted. And he was sent to Germany. And I followed him and was able to get a job there as a government lawyer for the federal government at the quartermaster market center. And after he was discharged from the service, in just over three years, we came back to Phoenix, Arizona, and he took a job in a law firm in Phoenix. And I looked around at the law firms and Phoenix helped they get a job. And that was 1957. And none of them had hired a woman and they didn't want to so there we were back again, with a problem. And when I was studying for the bar exam in Arizona, I met a young man from the east, who was moving to Arizona, and he wanted to open a law office someplace. And so the two of us opened a little neighborhood law office. And we just took whatever came in the door to try to pay the rent and meet the expenses. And we did landlord tenant problems and collection cases. And we took appointments in criminal cases, because that was in the days before we had public defender's offices. And the judge, handling the criminal cases would appoint local lawyers if he thought they could do the job to defend some of the indigent people charged with crime. And we took a lot of those in an effort to help pay the rent. So it gave me a wide range of experience in matters not usually seen by the United States Supreme Court. But that was all right. I did have a wide variety of experiences.

And eventually, my, I had, we had a couple of children. And my babysitter moved to California. So I had to leave my card one law firm practice, and stay home for a few years with small children, we had a third child. And in time, I took a position in the Attorney General's Office of Arizona back in the public sector. And it was a great job. I loved it. And I had been there five or six years, when there was a vacancy in the Arizona State Senate in my legislative district. I was appointed to fill that vacancy and then ran for office a few times as state senator. And that was an interesting experience to be in the legislative branch of government. I've been in the Attorney General's the executive branch side. And the legislative experience was quite different. And after doing that for a while, I thought that it was a good thing if elected officials turn the job over to someone else after a while. And I decided to run for the position of trial judge which I did and was elected trial judge and served as a trial judge in Maricopa County in Phoenix for some years, and then went on the Arizona Court of Appeals by appointment.

And in 1981, President Reagan had said in his campaign that he would like to appoint a qualified woman to the US Supreme Court if we had a chance and a vacancy occurred. Justice Potter Stewart retired. And there's a little poem about him. Just Potter Stewart, whose chivalry can't be beat the first supreme court justice to give a lady his seat. And I was that lady. Well, anyway, the man who called me to ask me to come back to Washington to talk about a physician was William French Smith, who was serving as attorney general for the United States for President Reagan. And William French Smith had been a law partner in the law firm in Los Angeles, that gave me my job interview and asked me how I could type. So of course, when he called with tongue in cheek, I had to say, when he asked me to come back to Washington to talk to him about a position I said, well, a secretarial position, high trust. But anyway, I have now been at the court for 23 years. And it's been a remarkable time. I have learned a great deal. And I'm still learning every single day because the problems are different every year and every term. And we are privileged there to never stop learning nothing last let you ask some questions, and see what you'd like to talk about. But that's how I got where I am. And it's an unlikely story for a cowgirl from Arizona to end up at our nation's highest court tell who'd like to start our discussion.

Student
Justice O'Connor. My name is Brian brosnahan. And I take economics here, Eric and zag. And my question is, some people argue that because the makeup of the judicial system is not decided by direct election, that there's some issues that should not be decided by judicial review, but rather left to the legislature, which they see as a more democratic process. so as to avoid, you know, polarizing the nation on certain issues. I just like to get you to comment on this, if you could.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, I think the court has recognized that there are certain issues that have been left to other branches of government to resolve not the courts, and which we have decided over time that we won't take and try to decide. Some of those relate to whether a member of the House or Senate should be seated, for example, things where we do not feel that the judicial branch can properly get into it. It's often said, by people who are unhappy with something the court has done, that the court is stamped the courts are staffed the federal courts are staffed by unelected judges, and that we would be better off deferring more often to the legislative and executive branches. And there is great room in our system for giving deference to legislative choices. And we do that quite often, but not entirely. Because we have a written constitution. And that constitution is the fundamental document for our system of government.

And it was decided in that famous case of Marbury v. Madison, which you probably heard about, somewhere in your studies, decided, probably in about 1803. John Marshall, writing the opinion for the court, that courts do have the power where the case presents the issue to find that some law passed by Congress is unconstitutional. That it is the duty of the court to say what the law is that the Constitution is the law of the land and a supreme law of the land, and hence the role of the court. So we've been since that time, exercising that power of judicial review. It's been exercised more often in recent years than it ever was after Marbury v. Madison was decided, I think it was a good many years after Marbury v. Madison was decided, before the Supreme Court declared another act of Congress to be unconstitutional. So we do hesitate to do it. But not in a case where there are at least five members who think that the issue presented requires us in good conscience to find that some law past is unconstitutional. But we always do it with a sense of concern and a realization that the elected branch, branches of government have a terribly important role to play in making those choices.

But the constitution with its Bill of Rights and its guarantee of individual liberty is paramount. And under our system, how is it that the right of an individual provided for or guaranteed by the Bill of Rights? Can Trump the power of a legislative enactment, an act and presumably on behalf of the majority of our citizens? how can how can one individuals rights Trump fan? And yet we've said they do when that right is protected by the Constitution and by the Bill of Rights. And the only way that can happen is by the action of an independent judiciary who is willing to enforce our nation's charter even against the will of the majority by either the legislative or the elected executive branch. Yes.

Student
Justice O'Connor. Yes. Hello, my name is Justin de Betancourt. And I'm also an economic chickens. Agha. And my question, as you know, some judges have been accused of legislating from the bench. With the recent mandatory sentencing laws, it seems as if some legislators are trying to usurp the power the judges. And I just want to see your views on if this conflict continues in the future.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Sentencing and criminal cases is an area of concern. To most legislators I've discovered, I will remember when I was a legislator in Arizona, how there would be specific cases of a certain person charged with a serious crime and it would have gone to the local trial court. And if there was a conviction, then the judge might have sentence the convicted defendant to probation instead of some term of years in jail. And there would be an outcry by the public and in the press about how the judge should have given some other sentence and the criticism of bad and the notion that there was a lot of disparity in sentencing that two people convicted of the very same offense, one would be given probation and another jail and then it didn't seem fair or right. That kind of criticism, which was occurring in Arizona when I was in the legislature. And later when I was a trial court judge was also occurring across the country and ultimately at the federal level as well. And the result was we saw the enactment all across the country in many states have mandatory sentencing laws, laws passed to restrict the discretion of judges in giving sentences.

When I became a trial judge in Arizona, for any offense, which was a felony, classified by the legislature as a felony, the trial judge had the discretion at sentencing give anything from probation up to life in prison. I've asked pretty broad discretion. And that's the way it was in most states for many years. But that broad discretion, which was exercised differently by different judges and four different defendants, led to the enactment of a great many laws across the country at the state level trying to restrict the judges sentencing discretion. Then Congress decided to do the same thing at the federal level, and enacted a law setting up a Sentencing Commission. And my colleague, Justice Briar was a member of that commission, he was serving as a Court of Appeals judge at the time. And the commission met and they tried to develop guidelines. And then Congress passed a law requiring federal judges to sentence defendants in accordance with those guidelines to try to reduce the disparity in sentencing that could occur and did on occasion occur.

And what we have seen since the sentencing guidelines scheme at the federal level, is that Congress has come along later and an act at a good many sentencing provisions that contain mandatory sentencing provisions, not not even leaving us the guidelines. But saying that for certain crimes, there must be a minimum sentence of let's say, 25 years to lie. And that has further restricted the discretion of the judges. And I understand there is a provision currently before Congress to further restrict the sentencing guidelines at the federal level. So it's a strong trend that we've seen, It's troublesome to most judges who are accustomed to being able to use their discretion and their judgment in sentencing criminal defendants. And I myself would understand that concern very well, because I served under a system where I had a great deal of discretion. But it's a strong trend. Now, I don't know how long that's going to continue. Most of these things go along until it becomes an extreme position, and then you see changes the other direction. So I don't know that we can expect this to be a trend forever. You know, our prisons are so full today we have more people incarcerated in this country than ever before in our history. And many of them serving very long sentences, indeed. And is that what we want? I don't know, perhaps in time, people will make other choices. But I haven't seen that trend develop yet.

Student
Justice O'Connor, my name is Michael McGrail. And I also take economics. And I was wondering why the Supreme Court has consistently rejected petitions to allow cameras in their proceedings, while Congress has allow companies such as c span to broadcast cases or whatever.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Well, of course, we're not an elected branch. And we try to conduct our proceedings in a an order like quiet way and to make our decisions without outside influence, if you will, of the press or anything else, but to try to do it based on the record in the case, based on the precedents that we have to follow. And it's more of an intellectual or academic exercise, than it is one in trying to involve the public in that process. And the court is very slow, to make changes in its way of doing business. I think judges are perhaps slower to change than most groups in society. And we have not agreed at this stage to have cameras at the Supreme Court. Were concerned, of course, that it might alter the nature or content of some of the arguments that are made to us, and somehow affect the process, which we think works pretty fairly. Now, we do make tape recordings of all the arguments. And those are available, both in written transcript from the recordings and the recordings themselves. In due course, not immediately, but after a few weeks. And we did make them immediately available in a couple of recent cases, which seemed to be well received, although it's hard to do.

Student
I'm (inaudible), and I'm also in economics here.

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Now, what's going on with economics here at Gonzaga?

Student
I also don't know, it seems to be a little bit, a little bit of a pattern. But justice, as you know, Americans have always held their personal liberties close to their hearts. And I was wondering in the wake of our new political climate, should Americans be worried their personal liberties will be sacrificed for the sake of national security?

Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
We have seen since September 11th and the succeeding events, the enactment of some legislation at the federal level, designed to make it more likely that the terrorist threat can be contained. And some of those provisions concern, the acquisition of information by wiretap and so forth. That is more generous to law enforcement than has ever been the case in the past. And as you know, we're holding certain people incarcerated as a result of the events in Afghanistan and some other events here as well. And some of those cases are presenting issues.