Sandra Day O'Connor [automatically transcribed, may contain inaccuracies]
Thank you, thank you, thank you. Thank you. Dean told me, as is often the case in church, there are still some seats up in front. So if somebody standing under would rather be seated, come on up and I think you might find some seats.

You've doubtlessly heard the praise that Charles Dickens lavished upon Cincinnati, one of the few places that enticed him during his travels through 19th century America. The judges here he said were gentlemen of high character and attainments. The society with which I mingled was intelligent, courteous and agreeable. The inhabitants of Cincinnati are proud of their city as one of the most interesting in America and with good reason. I suppose William Howard Taft was perhaps the most illustrious product of that social and judicial tradition. Although a special place of prominence must also be accorded another of Cincinnati's leaders. My immediate predecessor on the Supreme Court, Justice Potter Stewart, perhaps no Justice of the Supreme Court, past or present, can rival Chief Justice Taft's remarkable career prior to appointment to the court, Solicitor General at age 30, civil governor of the Philippine Islands, Federal Circuit Court Judge, Secretary of War, President of the United States by the way, along the way, he also distinguished himself as dean and Professor of property at the law department of the University of Cincinnati. Despite these varied honors, Taft's greatest commitment lay with the law and the judicial tradition. I love judges and I love courts, he wants said, they are my ideals that typify on earth what we show me here, right After in heaven under adjust God Taft's commitment to this nation's federal judicial process is part of a tradition that extends back at least two centuries to the passage of the Judiciary Act of 1789.

The subject of my remarks today, since 1987, we have enjoyed a number of Bicentennial observances. While most attention this year has focused on the French Revolution, there's another Bicentennial event that we should recall and celebrate this year. It is the enactment of the Judiciary Act passed by the first Congress of the United States on September 24, last Sunday 1789. The Act stands at the beginning of a tradition that has will serve the entire nation and as one that all Americans should continue You to view with pride. for Americans our legal system plays a special role in how we preserve what we most value as a nation and and how we strive to become the nation that we aspire to be. The Judiciary Act was a crucial, foundational part of that American tradition of seeking to perfect our nation through considered change in accord with the rule of law. This impulse underlies many of the nation's greatest successes. It remains as important today as it was 200 years ago. In celebrating the Judiciary Act, we celebrate those people who have sacrificed to protect that legal tradition. And we recognize the overwhelming majority of Americans who also continue to endorse the values embedded in that tradition. That Judiciary Act established many of our nation's fundamental legal institutions. as mandated by the Constitution. The Act established the Supreme Court of the United States, and set the number of justices originally at six. The Office of Attorney General arose from the Judiciary Act, and the first Congress exercising the discretion vested in it by the Constitution chose to create a system of subsidiary federal courts in addition to the Supreme Court.

Because this decision was essential to the creation of an independent federal judiciary, Justice Felix Frankfurter and James Landis, being that the x transcendent achievement. The X nationwide network of Federal District trial courts continues to this day. Thankfully, a group of prominent Circuit Court judges has Replace the Judiciary Act circuit court system, which is, you know employed local district court judges and visiting supreme court justices who literally rode the circuit of the intermediate court scattered throughout the country, and then sat and judgment as members of the Supreme Court on their own decisions, while providing for an independent federal judiciary. The Act recognize the competence and the vital role of the states and their judicial systems. Congress vested only a small portion of the jurisdiction permitted by article three exclusively in the federal courts, leaving the rest either to be exercised by the state and federal courts concurrently, or by the state courts alone in the first instance. The Act section 25 considerably strengthen the national role by giving the supreme court the authority to review certain judgments of state courts on issues of federal law. And this provision was vital to the nation's development. Justice Oliver Wendell Holmes claim that in contrast to the judicial power to declare acts of Congress unconstitutional, the Union would be imperiled if we could not make that declaration as to the laws of the several States. Because this one act of Congress established so many lasting and fundamental elements of our judicial system. It is deservedly one a great deal of praise. Justice Henry brown and 1911 deemed that Judiciary Act, probably the most important and the most satisfactory act ever passed by Congress.

A more recent commentator, the late Professor Paul backdoor notes that since its passage the Act has ever since been celebrated as a great law The Judiciary Act mark the last great event in our nation's founding. It formed the genesis of our nation's continuing constitutional revolution. It is the last of the triad of founding documents along with the Declaration of Independence and the Constitution itself. The Declaration of Independence made clear that our revolution sought to defend our nation's most basic liberties and values. Our constitution gave form to the government that would protect those liberties and the common good, that government would succeed and those liberties would be protected only through the nation's commitment to the legal process and the rule of law. The Judiciary Act fulfilled that commitment. for 200 years we've remained committed to the rule of law to respect For the legal process that protects what our nation most values, while still allowing debate on what most needs change. The federal judiciary has often been the focus and defender of that tradition, which has served us for two centuries. The judges who have so well perform the duties prescribed for them deserve our continuing gratitude, a comparison of the legal revolution engendered by the Judiciary Act. And the course of the French Revolution, also 200 years old, illustrates this nation's distinctive commitment and approach. The French revolutionaries valued reason and assume that pure acts of will, guided by reason would allow them to construct the ideal society. That revolution was transformative, seeking the uproot everything that had gone before. Our nation's revolution was by contrast, essentially a conserving one. conflict and institutional change here appeared necessary to protect traditional liberties, community structures and personal rights. Change in our view, then, must take place through means and accord with law and must build on that which went before.

Each revolutionary tradition will contain different conceptions of the legal process. The French revolutionaries on balance, saw law as an instrument of power. law to them at first appeared merely to be the bulwark of the old order, and they thought the legal system was an oppression that had to be overthrown. Once in power, the French revolutionaries use the law to reconstruct their world law became an instrument to eradicate undesirable social orders to ensure state control over the economy, and even to transform time and space. The French re divided the calendar and gave each portion a new name. more familiar to us is their newly crafted system of measurement the metric system. By contrast, the American revolutionaries embrace the legal process as their chosen means of protecting the values that the revolution have vindicated and of providing for the communities peaceful and continuous evolution. In this sense, the Judiciary Act created the vehicle for this ongoing process of measured and considered change. Yet that act created only the mechanism of that change. In the end, the nation's hope rested with those who safeguard at the legal process and with Those who believe that law should govern all citizens and partially that citizens must resolve their differences through the democratic process as provided by law, and that the legal process must be valued as the means of preserving that which is most fundamental to our nation. The course of France and the United States and the years following their respective revolutions, illustrates their differing approaches. The French Revolution did, at least for a brief period transform society, succeeding groups of revolutionaries their stripped away the institutions and customs that stood between the centralized state and the most intimate details of every citizens life. various factions declared various rights and each time put the French nation on a new course. Violence toward the country.

The Civil War and the executions that took hundreds of thousands of lives and the Von day, the near anarchy of the September 1792 massacre of the innocence, the organized political violence of the terror. And finally the foreign wars that led to the rise of Napoleon and the end of the revolution. During that very same period, the United States was in comparison, a tranquil place. I think we often overlook how much at least and domestic affairs, disagreement in our country was cast and legal terms and often resolved and debates about or through the legal process. Many of the great conflicts of the time possess this character. Alexander Hamilton's financial plans were often debated as an issue of the constitutionality of the First Bank of the United States. So to debate over the Alien and Sedition Acts became a struggle over the powers granted by law to the national government. The trial of Aaron Berger, the attempted impeachment of justice chase the debate over the scope of the common law of crime. The conflicts surrounding President Adams midnight appointments, culminating in the case of Marbury vs. Madison all suggests that our nation would define itself through debate within and concerning the legal system, and the distribution of powers allowed by law. This commitment here to change and accord with the rule of law continued and has increasingly required that questions of fundamental concern to our citizens will often be resolved through the legal system.

In the early 19th century, Alexis de Tocqueville, Mark Upon this development when he wrote that there is hardly a political question in the United States, which does not sooner or later turn into a judicial one. This conclusion may overstate the matter, but it points to the enduring pattern of how our nation's commitment to the rule of law underlies and channels political change. Judges may not usually be cast as revolutionaries. But our reliance on considered change to preserve and during values accords a special role to the legal process. To be sure the legal system addresses only those issues thrust upon it. And in this manner, only marks the shadows cast by more important institutions and social forces, especially the legislative process, and ongoing debate among citizens about the nation's future. Even so, those who start The legal process have played a crucial role in protecting and shaping the varied aspects of our constitutional system, as well as our nation's devotion to change and continuity balanced through commitment to the rule of law. A brief mention of the contributions of some of our nation's great judges illustrates three aspects of that commitment. The importance of a strong and independent federal judiciary do accord by the judiciary for the legislative process, and adherence to the rule of law even in the face of popular opposition.

The fourth Chief Justice of the United States, John Marshall, contributed as much as any other person to that first element of our judicial tradition, ensuring that a strong and independent judiciary serves the nation. It's no overstatement. claim that Chief Justice Marshall fulfill the Constitution's promise of an independent federal judiciary. While a Judiciary Act provided the foundation for the eventual development of our judicial tradition, much of what is distinctive and praiseworthy in the subsequent development of the federal bench can be traced to john marshals efforts. It's a little difficult to imagine our nation today without an independent and vigorous federal judiciary. But that fortunate result was hardly for ordained. The Supreme Court considered very few cases during its first years and it produced opinions that were marked by division. It had so little business that the first Chief Justice john Jay had time to go for months at a stretch to England to negotiate the J treaty and some of his predecessors Likewise, all but one of the original justices left the court after a relatively brief period of service. While on the court, several justices vigorously participated in partisan political activities, leading in one case to a narrowly successful impeachment effort. Unsurprisingly, the Supreme Court possess neither public trust, normal, particularly prominent national role. Congress suspended the courts terms so it would not be able to consider certain cases. And many of the prominent statesman of the day Thomas Jefferson and James Madison included, argued that the state's rather than the court should finally determine certain constitutional issues. When President John Adams offered to reappoint former Chief Justice John Jay to the court after he'd been elected, and served as governor of the state of New York, Jay declined, replying that the court could not obtain the energy weight and dignity, which were essential to its affording do support to the national government nor cadet acquire the public confidence and respect, which as the last resort of the justice of the nation it should possess. So John Marshall great achievement was to rescue the court, and by extension, the whole federal judiciary from this dire state, and to fashion a role not unlike that which exists today. As one legal historian concluded, the genesis of the American judicial tradition was the transformation of the Office of appellate judge under John Marshall.

Chief Justice Marshall unified the court which began to issue single unanimous opinions in most cases, the court became more and more pendant. Under Chief Justice Marshall members of the court largely ceased participation in partisan political activities. While the courts efforts continued to engender criticism, as continues even today, as they inevitably do, those criticisms were based on differences regarding fundamental legal principles. Rather than on the personal behavior of the individual justices. largely through john Marshall's efforts, the court also assumed the role commensurate with its status under the Constitution as one of the three branches of national government. In the case of Marbury v. Madison. John Marshall established the courts ability even responsibility to judge the constitutionality of statutes passed by Congress, when judges are called on to apply them. It was a section of the judicial react, which the Court declared unconstitutional and Marbury. The Marshall court also asserted the federal judiciary responsibility to pursue its interpretation of the Constitution, in the face of contrary assertions by state legislatures, state judges, or officials of the executive branch. Beyond establishing the judiciary is unique and co equal constitutional role. The court under Chief Justice marshals leadership, interpreted the broad provisions of the Constitution to allocate power among the other often competing institutions and the federal union. Through a series of landmark cases. Chief Justice Marshall carved out a broad role for the exercise by Congress of its limited powers at a time quite unlike the present when the power of the state's threatened to engulf the Still undefined the powers of the national legislature. The Marshal opinions ensure that the states could not frustrate the legitimate efforts of Congress, especially efforts to regulate the national economy. And another cases, Chief Justice Marshall pioneered the courts role in protecting individual rights against unconstitutional intrusions by state or national government. By the time of his death in 1835, the court was a respected institution, sufficiently powerful and independent to fulfill the role provided for it under the Constitution. Another Chief Justice William Howard Taft, succeeded brilliantly in continuing and building upon john marshals efforts to strengthen the federal judiciary. Chief Justice Taft was responsible for many The institutional changes that have allowed the federal judiciary to adapt and respond to the demands of the 20th century. Chief Justice Taft was instrumental in creating the institutions needed to manage and coordinate a federal judicial system instead of the previous loose amalgamation of individual judicial districts. He crafted and lobbied for the legislation that gave the Supreme Court a great deal of control over its own docket. And the construction of the Supreme Court's own building may be traced almost entirely to his efforts. Chief Justice, Taft and vision the judicial system that would be a more efficient and effective instrument of justice, open to all citizens with worthy claims, and able to respond to the legal demands of modern times.

To fulfill his vision, he sought to unify and simplify The rules of procedure, combining the disparate practices existing and law and equity and placing them under the supervision of the Supreme Court. Now this goal was not fulfilled until after his death, but it would not have come to pass without his efforts. Reflecting on Chief Justice Taft's efforts to transform the federal judiciary. Justice Felix Frankfurter remarked that Taft's great claim and history will be as a law reformer, Justice Frankfurter rank Taft's accomplishments, next to those of Oliver Ellsworth, the principal draft or of the Judiciary Act of 1789. While Ellsworth devised the judicial system, Chief Justice Taft adapted it to the needs of a country that had grown from 3 million to 140 million. The judicial system so largely shaped by the William Howard Taft now accommodates the needs of a nation of over 250 million. A later group of judges, built upon Chief Justice Marshall and Chief Justice Taft successes by accommodating the power of the federal judiciary, to the values of democracy and to the demands of change in early 20th century America. These judges brilliantly displayed the second characteristic of our nation's legal tradition, that the judiciary, though powerful, must not travel the legitimate operation of the legislative process. This group includes many of the giants of the field, justified justice Oliver Wendell Holmes, Justice Felix Frankfurter and judge Learned Hand and it taught us that one value the independent judiciary must strive to protect is the ability of the community to define its future in accord with the rule of law. Chief Justice Marshall had been, in a sense, almost too successful in establishing an independent and strong federal judiciary. By the end of the 19th century, the federal judiciary was so powerful at certain judges view of broad provisions of the Constitution led the courts to invalidate a range of congressional and especially state legislation. The stricken measures often attempted to confront the problems associated with an expanding national economy with increased industrialization and sometimes violent labor strife. The great contribution of justices homes and Frankfurter and a judge hand was there reminder that judges cannot ultimate presumed to direct the nation's ongoing process of change, accomplished through the legislative process, that judges are citizens like others and the Republic, and not in learned hands phrase platonic guardians. All three of these judges drew their theories of judicial restraint from their skepticism that those in power possess some ultimate truth. As justice Holmes wrote, when man have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas. These judges doubted claims of superior knowledge or wisdom put forth by those who would displace legislators consider judgment This lesson applied differently when judges interpreted statutes and when they assess those statutes constitutionality in terms that bear repeating, Judge Learned Hand laid out the task of a judge who must interpret a statute.

The judge must always remember that he should go no further than he should the government would have gone hadn't been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in the society for which he speaks would have come to adjust resolved even though he sure that he knows what the just result should be. He is not to substitute even his just her will for theirs. Otherwise, it would not be the common will which prevails and to that extent the people would not govern. similar concerns stemming from democratic theory I'm from the recognition that legislators must be allowed to confront the nation's many problems mandated a degree of restraint and deciding constitutional issues also, learn at hand praise justice homes for his caution in applying the theory of the day to place constitutional barriers before legislature's that caution in the end must rest upon a council of skepticism, or at least upon a recognition that there's been one test for divergent popular convictions, he said, experiment, and that almost any experiment in the end is less dangerous than its suppression. In a few quarters, this theory of judicial restraint, lies and some disrepute. But it is not as critics may argue to be confused with an absence of belief or with opposition to progress. Justice Holmes was a fervent abolitionist and later nearly died. Does he lay wounded in the midst of a civil war battle, even as a judge learn at hand participated in the progressive reform movement led by Theodore Roosevelt. And before putting on his robes, Justice Frankfurter involved himself in a range of social causes, investigating labor unrest, defending Sacco and van SETI and advising Franklin Roosevelt during the New Deal period, just to mention a few. Yet all three, recognize that as judges, they were not charged with crafting the ideal world. They all tell it had Professor theorists observations that excessive judicial interference those citizens attention to and responsibility for first principles, and that under no system, can the power of courts go far to save a people from ruin. Our chief protection lies elsewhere. Only the nation's commitment to its fundamental beliefs and to the legal process will preserve the country and its citizens liberties. justices and judges alone cannot forestall considered a needed change. nor should they follow the model of the French revolutionaries and try to replace their inheritance with one particular version of the ideal society. On the whole, this view of the judicial roll triumphed in our country and became an essential element of our nation's legal tradition. states and the Congress were increasingly able to confront a broad range of social problems in this country. And their constant experimentation has led to labor legislation, environmental laws, regulation of many aspects of the economy and a vast array of social programs. While many in our society may disagree with particular measures, a broad consensus has formed that judges will not pass on the wisdom of these measures. judges will uphold the great commands of the Constitution, but will also recognize that one of the Constitution is great lessons is that we the people ultimately govern the nation and protect our liberties and are ultimately responsible for the nation's success or failure. I'm going to provide one more and quite different example of the best of our nation's judicial tradition. That tradition is adherence to the rule of law even when it draws widespread popular opposition.

If justice Holmes, learn at hand and justice Frankfort are taught that judges should not interfere on duly with the democratic process and each A strong aspect of the judicial tradition is that no person or group however powerful as above the law, or can subvert the products of the legal process. One group of judges those who applied the teaching of Brown versus the Board of Education in the old Fifth Circuit, whose jurisdiction included many of the southern states deserve special mention for their service in upholding this ideal. They demonstrated the courage and the commitment that maintain our nation's commitment to considered change through adherence to the rule of law. In portions of the nation, the 1950s and the early 1960s certainly presented unusual tension between the clear law of the land and the traditions of a manifest inequality in a series of famous cases, most prominent like Brown versus Board of Education, but Including others issued before and after Brown. The Supreme Court made clear the meaning of the words of the constitution that no state shall deny to any person within its jurisdiction the equal protection of the laws. The widespread system of segregated schools and the entire set of practices that denied citizens opportunities and civil rights on account of their race conflicted with this constitutional command. A small group of judges was largely responsible for ensuring that the Constitution and the Supreme Court's teaching endured in the face of often great, often widespread, and occasionally violent resistance. As we know now, the rule of law prevailed, but that conclusion was for many years, less than certain and much that prevented bloodshed. That established and protected civil rights and maintain respect for an independent legal system can be traced to the courage and the dedication of a small group of judges. Many of singled out for praise a group of leaders on the Fifth Circuit during that period, known colloquially as the for john minor wisdom of Louisiana, Albert Tuttle of Georgia, Richard Reeves of Alabama and john brown of Texas. Professor Bert Marshall, a former assistant attorney general concluded, those four judges have made as much an imprint on American society and American law as any four judges below the Supreme Court have ever done on any court. If it hadn't been for judges like that on the Fifth Circuit. I think brown would have failed in the end. I think it's cause for both celebration and shame. That these judges have to sacrifice so much merely to perform their duty. We can now celebrate their courage, and yet still feel shame that simple principles of equality were so steadfast like resisted. The dedication of these judges to the Constitution shape nearly every significant event in the struggle for civil rights. The battles over desegregation of the state universities and local school systems, the efforts to give effect to the right to vote, and the conflicts over dismantling the Jim Crow system of public segregation. These and other federal judges made significant personal sacrifices. After judge Frank Johnson had affirmed equal protection principles in the Montgomery Bus Boycott case. A bomb exploded at the home of his mother, who was listed in the telephone directory as Mrs. Frank M. Johnson. Senior vandals desecrated the grave of the son of Judge Reeves who also decided that case. Judge Kelly right in the midst of a multi year struggle between his court and local officials. Over the desegregation of New Orleans schools, required whole shifts of federal marshals to protect his home and to a score him to and from work. Many of the judges received death threats and ongoing harassment in perhaps the greatest hardship. Many of these judges were ostracized by their former friends and associates. They were made outcasts in their own communities, and condemned for understanding and upholding the Constitution.

Now many others, lawyer and non lawyer alike also have sacrifice to preserve this nation's commitment to the rule of law. And I think only at our peril, do we ignore that sacrifice, or forget that we too, are called on to uphold that ultimate tradition and value. Now, I've, in a sense wandered a long way from the Judiciary Act of 1789. But in a more important sense, our recognition of these three groups of judges illustrates the most important aspect of that act. The Act initiated and made possible the American legal tradition with its judicial independence, its commitment to consider democratic government governance and adherence to the rule of law. We might gain a sense of the full measure of that tradition. If we look back nearly two centuries to the years just following the passage of the judiciary Imagine if you will, going with one of the Justices of the Supreme Court as he rode the circuit. in those early years, the justices spent a tremendous portion of each year traveling to the districts and one of the nation's three regions to sit with the local district judge as members of the circuit court. Travel was difficult, it was slow, the accommodations were non existent or miserable, and the journey in a single circuit term come out to a track with horse and buggy have thousands of miles. The land we would pass through would strike us as nearly foreign today. The nation was as much a confederation as a union with each state, often functioning as a separate country containing its own separate culture. The economy was overwhelmingly rural, with plantation already well developed in some regions, and new single family farms being carved out of the wilderness and others, only a handful of cities were home to more than 10,000 persons. The age of manufacturing and scientific revolution could just be discerned. For many life was difficult beyond comprehension. Slavery with its attendant evils existed and much of the nation. The judicial system and the protections it could afford were certainly rudimentary. governance of the Western lands and relations with the Native American tribes were in disarray and the intrigues of hostile powers threatened to unleash our young country. The future of our nation in short, 200 years ago was very uncertain indeed. Now I think we should be proud of our successes during the following two centuries. The nation has established its place in the world is a land of freedom and opportunity. We have corrected some in justices, and we still strive to correct others. We own much of that success to the men and women who've shaped and maintained our nation's judicial tradition. We have succeeded in large part because we have remained committed to considered change through adherence to the rule of law. The Judiciary Act and not of course create that tradition. But the Act was an important part of the beginning of it. A bicentennial celebration is a time for renewal as well as recollection and few efforts will better serve our nation than our collective rededication to our unique legal tradition. One we can trace to the Judiciary Act to the framing of the Constitution. To the revolution itself, and the enduring values that animated each of them. Thank you for your patience.

Host
Justice O'Connor your remarks while I'm sitting there recalled, Sir Robert bolts play on Thomas Moore there's a scene in the play in which more and his friend are talking. His friend says to more that if you ignore a law, you can save your life and more. His response to his friend is That if I, if the if we cut down all the laws and the devil comes after us, where do we hide then? I think justice O'Connor's remarks about a strong and independent judiciary with the justice of the strength of justice or Justices of the strength of Justice O'Connor. That type of independence and strength will keep the devil at bay for quite a while. Justice O'Connor, thank you very much for your remarks. I invite you all to celebrate Justice O'Connor in the atrium at our reception. Thank you very much.