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08 January 2009
Retired Justice O’Connor Discusses U.S. Judicial System
Podcast with former Supreme Court Justice
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Narrator:
America.gov presents our conversation with retired Supreme Court Justice Sandra Day O’Connor. Justice O’Connor is the first woman ever to serve on the nation’s highest court. The United States owes its success as a nation and a society to its constitution, the document that guarantees the freedom and rights of every American citizen. Today, Justice O’Connor gives us her views on current issues and helps us understand the importance of the American judicial system.
A good demonstration of the trust that Americans have in the rule of law is their confidence in the U.S. legal system. Every day in America, courts throughout the country render decisions that affect many people. Courts are a central part of the legal system, but they are not the entire system. Millions of Americans depend on legal services to manage their day-to-day affairs without interacting directly with the courts. They, too, rely upon the legal system. Citizens who want to buy a home, start a business or provide security for their children all require the predictable, common norms that the rule of law provides and the U.S. legal system guarantees.
Justice O’Connor:
The notion of the rule of law is basically a very good notion. It’s all about how you achieve justice and fairness in the nation’s governmental structure. I’ve been a great proponent of the notion of the rule of law as we’ve gone around the world and as we’ve been able to see new nation states develop elsewhere in the world.
Narrator:
The United States started as a small country. At its founding, America adopted a new form of government that was untested, and a complete change from the accepted practices of government at that time. But the country prospered. It has had its share of challenges and setbacks, but the country’s sense of justice, rooted in the wisdom of a written constitution, have remained unchanged. America owes its development success to its legal and judicial system as much as any other factor.
Justice O’Connor:
When this country decided to try to break away from the British Empire and set up its own country, the decision was made early on to try to draft a constitution for the United States.
Narrator:
The U.S. Constitution is one the most enduring documents in all of history. It was written at a time when political power was exercised exclusively by kings and the aristocracy. The thought that a nation’s power could come from the people through a system of government designed specifically for that purpose was truly revolutionary.
Justice O’Connor:
And we had some colonies in those days that later became states — we had 13 of them and the problem was how to meld together the colonies, each of which had features of independence — into one functioning national unit.
Narrator:
In the late 1700s, America was not united. The 13 separate colonies, each with their own laws and governments, disagreed on many, many issues. But they all realized one important point — unless they cooperated with each other for mutual benefit and protection, the new United States, at the time a weak and vulnerable country, would not survive.
Justice O’Connor:
The states had had a kind of agreement under which they operated for a brief period of time, but it was not satisfactory and the framers decided to try to do a better job. They all got together in Independence Hall in Philadelphia, Pennsylvania, and they closed the doors, they didn’t admit any press, any visitors, and they all tried to come up with the fundamental rules for our new form of government in the United States.
Narrator:
Over 200 years, after being changed, or amended, 27 times, the U.S. Constitution remains the supreme law of the land. The document was created to act as a framework for making laws — which means that it sets out the broad principles — the values and spirit of the nation, and the rights of citizens. Those principles — written in clear, simple language — are the standard upon which all U.S. laws are based.
Justice O’Connor:
Our whole constitution can be reprinted in a little pamphlet that fits right in your pocket or your purse. I carry one with me always — and it’s fabulous.
Almost every country in the world has some kind of fundamental document, a constitution, if you will.
Narrator:
A crucial part of any written constitution is the guarantee of citizens’ rights. In America, this is called the Bill of Rights. During the American Revolution, each state had adopted its own constitution. Most of them included a clear declaration of the rights of all people. Most Americans believed that no constitution could be considered complete without such a declaration, and many state leaders might have prevented ratification of the U.S. Constitution if their demands for a Bill or Rights were not met.
It is in the Bill of Rights, the first 10 amendments to the Constitution that the most basic American freedoms are guaranteed — like the freedom of speech, freedom of religion and freedom of the press. Americans sometimes feel dissatisfied with the policies and practices of those who govern. But in fact, American citizens are ultimately responsible for protecting their own rights.
Justice O’Connor:
And we need education, we need the citizens to be educated so they can do their part when there are elections. You need citizens who understand the role of each branch of government because young people don’t inherit the concepts through the gene pool, every generation has to learn it. And that’s true around the world — you need education, first and foremost about the system of government and how the citizens can play a role in it and I think this is of critical importance in every country, including my own.
Narrator:
The founders of the new American government in 1789 were above all guided by a desire to ensure freedom for their citizens. They also knew that as a small, vulnerable and weak nation, they must cooperate to survive. The Constitutional Convention held in Philadelphia was convened to solve these matters through a never-before-seen system of government.
Justice O’Connor:
And what the framers came up with was a structure of a national government that could encompass within it the separate individual colonies, later states. And the framers wanted to provide each state with primary responsibility for health and welfare legislation. Bu they wanted national government with certain national powers, primarily to regulate commerce.
Narrator:
Some of the very first institutions of the American government dealt with practical economic matters such as the printing of money, regulation of international commerce and the collection of import duties. The participating states had to agree to give some of their powers to the new national government. Many were skeptical, and demanded a government whose power could be restrained.
Justice O’Connor:
And I thought the best thing the framers did was to set up three separate braches of government. An executive branch headed by the President of the United States; a legislative branch consisting of the Congress; and a judicial branch. That was also very important.
Narrator:
The U.S. Constitution can be described as a framework document. It does not try to address the many details of governing a nation. Instead it establishes principles that laws and regulations must follow. The entire system also uses the traditional legal principles found in English common law, so the courts continue to apply unwritten common law principles to fill in the gaps where the Constitution is silent. But as Justice O’Connor explains, each branch is subject to a variety of checks on its power by the other two branches.
Justice O’Connor:
The executive makes appointments to the different federal offices and also must nominate justices and federal judges and all other federal officers under the Constitution. The Congress is the branch that passes the laws and it controls the budget; it controls how money the President will have, how much money the courts will have. And then the judicial branch has the power to interpret the laws passed by Congress — what do they mean, if there’s a conflict? And secondly, to enforce the provisions of the Constitution, which might mean saying that some action taken by one of the other two branches is not constitutional.
Narrator:
The framers of the American constitution demanded that one of the basic principles of a new government be that no one branch should gain too much power. The delicate balance of the American government is by many considered the single greatest achievement of the Constitution.
Justice O’Connor:
The creation of the three separate branches of government — executive, legislative, judicial — each with some power over the other two, was the genius of the Constitution. And it was an amazing development. It’s worked pretty well — for over 200 years.
Narrator:
Many of the framers of the Constitution were reluctant to concentrate too much authority in a central government. For this reason, the creation of a judicial branch that included a system of courts to interpret the laws and policies created by the executive and legislative branches was seen as very important.
Justice O’Connor:
Each state — each colony, each state — had a separate judicial branch with its own court system and its own supreme court. And because they were setting up a national government, they wanted some control over the interpretation of this new constitution they were writing and that’s why they created a judicial branch.
Narrator:
The American legal system has several layers, in part because of the division between federal and state law. Today states retain substantial authority, and legal jurisdictions are jealously guarded. In American history, any time there was a shift of power or legal authority from the states to the federal government it was over fierce resistance from the states.
Justice O’Connor:
Each of our 50 states has a court system and they too have a role in interpreting state law. They can even interpret federal law as well. Although those decisions can be appealed to the U.S. Supreme Court.
Narrator:
Making and enforcing laws in the United States has never been easy — and that was a deliberate choice made by the Constitution’s framers. The separation of powers ensures that each branch of government has a specific role in governing the nation.
Justice O’Connor:
The role of the courts is never one to create policy or to develop policy. That is not the role of the courts. The courts have to resolve issues of law that come before them in the course of their jurisdiction. At the federal level, that often means interpreting some law passed by Congress. It’s Congress that establishes the policy, not the federal courts. But what happens is that — I’ve been a legislator and I know how hard it is to draft laws that are clear. Very often, legislators end up enacting legislation that is not clear or that can be interpreted in more than one way. And it often falls to the courts to interpret laws passed by Congress and try to figure out what it was Congress meant. Not to try to figure out what the judges think would be best, mind you, but to interpret what the Congress intended.
Narrator:
The ultimate decisions on whether policies, laws and legal decisions meet the standards of the Constitution are made by the Supreme Court. The nine justices that make up the Supreme Court can set aside any law — federal, state or local — that a majority of the justices believes conflicts with any part of the Constitution.
Justice O’Connor:
Issues arise as to the constitutionality of enactments of Congress. Sometimes litigants will come before the court with a case that says here’s what Congress said, we think that’s unconstitutional — that they exceeded their jurisdiction. And the courts sometimes have to decide that. The more difficult job probably is that of Congress in deciding what policies to enact. And it’s the role of the courts to interpret them and rule on constitutional challenges.
Justice O’Connor:
The rule of law is premised on the concept that the body that the nation uses to enact laws — they are the representatives of the people. Then you need a judicial branch that is able to interpret and, if need be, enforce those laws. And to do that, you need people who are fair and impartial, and qualified to be a judge — that’s what you need. And so you need systems in the various countries to select qualified, fair, and impartial judges.
Narrator:
Major legal decisions can have a large impact on American society. Such decisions often form the basis for political debate, and can play an important role in shaping voters’ opinions of candidates in election campaigns. Sometimes judges are criticized for their decisions.
Justice O’Connor:
We have seen in recent years more criticism of judges than I can remember in my lifetime. There’s a lot of talk about activist judges who are legislating from the bench. I find those comments very exaggerated and very harmful. Because judges are not ordinary politicians and they don’t decide cases based on their political preferences.
Narrator:
How the judicial system is formed helps settle problems of public trust before they even start. But nevertheless, disputes still occur. Perhaps the most significant example in recent years is the Supreme Court’s decision in the disputed result of the 2000 presidential election. The decision centered on how to count ballots in the state of Florida.
Justice O’Connor:
Unfortunately in Florida, they decided to leave it up to all the individual poll workers and so there was no uniformity at all in the rules. And that issue came to the Supreme Court and the Supreme Court said look, it’s a federal election and federal law applies, and under federal law, we have an equal protection clause and every voter is entitled to have the same rules applied as to every other voter.
Narrator:
America’s legal system has gone through many changes and has grown over the years. The fact that the American judicial establishment has remained effective for so long is a tribute to its design, even as the system becomes more complex and the number of cases has grown.
Justice O’Connor:
I grew up in a remote area in a ranch in Arizona and New Mexico and the county seat was a little town with just one lawyer and eventually, a second lawyer came and then both of them had lots of legal work to do. That was all it took — two lawyers, more work. And that’s what our experience has been in this country.
Narrator:
In many ways this is a logical result of a larger society in which the rule of law and its application is a basic element of fairness. The number of lawyers in America continues to grow.
Justice O’Connor:
The legal profession has become one that is fairly attractive to young people and we have lots of law schools, and it is true I think that when you have more lawyers you probably have more cases filed, and I think we do have more litigation than we need in this country.
Narrator:
Many American businesses support tort reform, saying that many lawsuits filed against them for violating civil or environmental laws, for example, are completely baseless and serve only to enrich the lawyers themselves. Some critics have even said that the American legal system has lost its way and needs to come back to its original purpose of creating fairness for citizens. But according to O’Connor, the number of lawyers and lawsuits is not the main issue for a healthy legal system.
Justice O’Connor:
I don’t think that having more lawyers necessarily means that courts have lost their way or that the legal system has lost its way. What you need is a fair and impartial judiciary. And that’s been our goal. I think the framers of the Constitution achieved that for the federal judges. The federal courts by and large, have been staffed by very well-qualified judges.
Narrator:
A fair and impartial judiciary is achieved through a fair system for choosing judges. The justices that preside on the U.S. Supreme Court are appointed by the President and then confirmed by the people’s representatives in Congress after public hearings.
Justice O’Connor explains that in a country as diverse as the United States, you can find many different methods of government.
Justice O’Connor:
We have 50 states. And the great bulk of litigation occurs not in the federal courts, but in the state courts. Now the states have very different ways of selecting state judges. Some states actually elect their judges in partisan, popular elections. I don’t think there’s another country in the world that does that. And it surprises people in other countries that we would select any judges that way. I personally do not think that partisan election of judges is a good way to select judges. I think they need to be appointed based on their qualifications and on merit. I think its fine to have a retention election, where you put the judge’s name on the ballot and you decide whether to keep that judge — yes or no — that’s fine. But the idea of having judges run and raise large sums of money is a terrible way to select judges. And so, that is a problem with our system, and I certainly don’t recommend partisan election of judges to any country that is trying to figure out how to select their judges.
Narrator:
Although it may not get very much attention, the American justice system is perhaps the most important part of the American government. It represents the foundation of the American dream — that people can improve the quality of their lives through hard work and creativity. The court system guarantees the dream through intellectual property protections, financial regulations and other guarantees for individuals’ rights. In the end, it is in all citizens’ interests to support the legal system and follow its provisions. The certainty afforded by a sound legal system means plans for the future can be made with confidence.
Narrator:
This podcast is produced by the U.S. Department of State’s Bureau of International Information Programs. Links to other Internet sites or opinions expressed should not be considered an endorsement of other content and views.
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