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NARRATOR: This is a production of Cornell University.
STEWART SCHWAB: Good afternoon. Thank you for joining us today for Cornell University's second annual Milton Konvitz Memorial Lecture. I'm Stewart Schwab, the Allan R. Tessler Dean of Cornell Law School, and I have the distinct honor to serve as your moderator for this unique and special occasion.
Thanks to the generosity of Dr. Irwin Jacobs, who received his engineering degree here in 1954, and Mrs. Joan Jacobs, who received her degree also in 1954 from Human Ecology, the Milton R. Konvitz Visiting Lectureship in American Ideals honors the spirit of Professor Milton R. Konvitz and especially his theoretically rich and diverse American Ideals course. And the purpose of their gift is to bring a prominent expert in American democratic thought, ethics, or political philosophy to campus to speak to the Cornell community.
Both the Law School and the ILR school are proud to count Professor Milton Konvitz as a former prominent faculty member. Professor Konvitz was a founding member of the ILR school, and also held a joint appointment and was a vital member of the Law School faculty. But Professor Konvitz's legendary reputation at Cornell stems in significant part from the fact that more than 8,000 students university-wide were students in his American Ideals course from 1946 to 1973.
In this course, undergraduates examine the writings and teachings of the great intellectual thinkers and philosophers throughout history and throughout the world who shaped American democratic values. Just this week, I spoke with Harold Tanner, former chairman of our Board of Trustees, who told me that this course was the best single course he ever had anywhere at any institution. And Justice Ruth Bader Ginsburg expressed similar sentiments to my wife Norma just last summer when we had the opportunity to speak with her. It is by no means an exaggeration to say that legions of alumni regard this course as one of the great learning experiences of their lives.
Now, Professor Konvitz passed away in 2003. His widow, Mary Konvitz, was very pleased to learn that Justice O'Connor would be this year's Konvitz lecturer, but unfortunately she is at this time too frail to travel from her home in New Jersey to attend.
Now, to introduce Justice O'Connor will be Professor Richard Polenberg, the Goldwin Smith professor of American History here at Cornell. Professor Polenberg began his teaching at Cornell in 1966, and chaired the Department of History from 1977 to 1980. His scholarship has received international recognition, including two major awards for his book, Fighting Faiths-- The Abrams Case, The Supreme Court, and Free Speech. He's known among both his students and colleagues as a legendary teacher in his own right, someone who imparts tremendous knowledge with an engaging style, and someone who has sparked a passion for ideas and lifelong learning is in his students.
Professor Polenberg will introduce Justice O'Connor. Justice O'Connor will then speak, and she has graciously agreed to entertain a few questions if there is time at the end. Please join me in welcoming Professor Richard Polenberg.
[APPLAUSE]
RICHARD POLENBERG: Thank you very much, Dean Schwab. I should say that the instructions for today's affair were that I walk behind Justice O'Connor and come to the podium, but no one told me about the jungle that would be here, and I thought I'd probably better not try to do that.
Thank you very much, Dean Schwab. There are several reasons why I'm particularly honored to introduce Justice Sandra Day O'Connor, who will deliver the Milton Konvitz Memorial Lecture on American Ideals. First, because Justice O'Connor has made such profoundly important contributions to American law, and second, because Professor Konvitz's teaching and scholarship meant so much to this university.
Justice O'Connor and truth share certain things in common with Professor Konvitz, including a personal friendship with and admiration for the late Justice Thurgood Marshall, and a commitment to the liberties enshrined in the Bill of Rights.
In 1941, when he became an assistant general counsel to the NAACP's Legal Defense Fund, Milton Konvitz began to work closely with Marshall, then the fund's director, and he remained a friend after moving to Cornell a few years later. In 1954, he wrote to Marshall, warmly congratulating him on his victory in a historic Supreme Court ruling in Brown v. Board of Education. And he wrote similarly gracious messages when Marshall was later appointed Solicitor General and shortly afterward a justice of the Supreme Court.
For his part, Marshall congratulated Konvitz on his promotion to the rank of professor. This is a letter that I found in the Konvitz papers here in the I and LR Library. Thurgood Marshall wrote with his characteristically wry sense of humor, quote, "I assume that such a position carries with it the usual absentmindedness customary of a full professorship. On the other hand, I am very much afraid that you will not become a typical professor, for if you do, it will then be necessary for all of us to remind everyone else that we knew you when you were a decent fellow."
[LAUGHTER]
When Sandra Day O'Connor was appointed to the Supreme Court in 1981, she became Justice Marshall's colleague. Justice O'Connor has included a moving tribute to him in her instructive, illuminating book, The Majesty of the Law-- Reflections of a Supreme Court Justice, published in 2003. In it, she recounts that Marshall often relied on anecdotes or stories to make his point, but he always used them, she explained, and here I quote her, "to remind us once again that the law is not an abstract concept removed from the society it serves, and that judges, as safeguarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality."
Throughout her distinguished career in public service, that is indeed what Justice O'Connor has endeavored to do. A graduate of Stanford University and Stanford Law School, she served in the Arizona State Senate and on the Arizona Court of Appeals before President Ronald Reagan nominated her to the Supreme Court. She remained on the Court for nearly a quarter of a century before resigning early in 2006.
She has recently received countless well-deserved tributes, including an honorary doctorate from Yale University, and now the law school at Arizona State University has been named The Sandra Day O'Connor School of Law.
During her years on the Court, Justice O'Connor wrote pathbreaking decisions in many areas, including gender equality, religious freedom, and affirmative action, which helped to improve the lives of all Americans. I will quote, if I may, just one sentence from her majority opinion in Hamdi versus Rumsfeld, decided in 2004. In that case, the Court ruled by a 5-4 margin that a citizen held in the United States as an enemy combatant must be given a chance to contest the factual basis for the detention before a neutral decision-maker.
Justice O'Connor said, and again I quote, "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested. And it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." That assertion would have pleased Professor Konvitz, who once wrote that he, quote, "saw the United States Constitution as it has been interpreted as a magnificent depository of our ideals, both individual and social."
Although Justice O'Connor retired from the Supreme Court in 2006, she has remained actively involved in national affairs, serving, for example, as a member of the Iraq Study Group, which reported last year. She has also continued to speak out on matters of concern to her and to all her fellow citizens.
So it is our good fortune that we now have the opportunity to hear Justice O'Connor, who is spending a few days in Ithaca as Distinguished Jurist in Residence, and she'll speak on aspects of the Supreme Court and oral argument before the Supreme Court. Please join me in welcoming Justice O'Connor.
[APPLAUSE]
SANDRA DAY O'CONNOR: Thank you. Thank you.
I wish I'd had a class from the professor. He sounds good to me. And Dean Schwab, and guests, friends of Cornell, I'm so glad to be here and to be with you this afternoon in this really beautiful hall.
I decided that what I would do is talk to you a little bit about the oral argument process at the Supreme Court. The Supreme Court of the United States through the years has had occasion to wrestle with some amazing issues. It continues to do so today. And that process is very much influenced by the advocacy at the Court by the lawyers who appear before it.
And lawyers who appear before the Supreme Court are usually a little bit awed by the power of the justices before whom they appear. Because it's the written opinion that articulates the law, it often seems that the Supreme Court deliberates about legal principles, debates the arguments, and then delivers judgments without any outside assistance.
Maybe it seems that lawyers exist only to digest and apply the law laid down by the Court, but the communication between justices and advocates flows two ways. While the justices answer the legal questions raised by the parties, the vibrancy of our case law depends very much on the assistance that the Court receives from the lawyers who appear before it. It's the lawyers who identify and spell out the legal issues. They offer ways to resolve those issues and at oral argument, they assist the justices in the task of synthesizing opposing viewpoints.
As former Chief Justice William Rehnquist said, "My colleagues and I disagree among ourselves about many legal questions, but I think we would all agree that a poorly presented case is apt to be a poorly decided case. Therefore we have reason to hope that the litigants before us will do a good job."
Now, all advocates are charged with the unenviable duty of looking up at nine justices-- they sit down below and the justices are up high on the bench-- each with his or her own significant questions and views about the best way to answer those questions. Oral advocates must present the Court with the strongest arguments they have in favor of their client's positions, while at the same time recognizing their responsibility to the Court and to the country to try to help shape a consistent, coherent body of law. They must often juggle two or three different lines of questioning in their heads in order to successfully respond to the justices' individual concerns.
When the Supreme Court first sat, it undoubtedly had a multitude of tasks. But given the importance of legal counsel to both the parties who relied on them and to the justices who trusted them to present cases, it's not surprising that the first act taken by the Supreme Court was admitting lawyers to its practice. On February 5, 1790, only two days after the justices first met in open session, the first three advocates were admitted to practice before the Court. During that term, 25 additional men were admitted to practice. In the next term, 29 were admitted.
If those numbers seem small, the decade that followed was even more surprising. On average, only five attorneys were admitted a year to practice before the Court. Matters have changed significantly since those early days. In the 2005 term, 3,927 new lawyers were admitted to practice before the Court. The court has averaged about 4,300 new attorney admissions a year for the last 20 years, and that's more than a hundredfold increase from 1790.
In part, more lawyers have been admitted to practice because our country has grown substantially larger, and legal issues have increased in number and complexity. And just as the first Court could not function until it admitted members of the bar, the history of the Court would be incomplete if it didn't look at the relationship that oral advocacy has had with the Court. The oral advocates have helped shape and strengthen the Supreme Court, and without their contributions, our jurisprudence would be poorer.
The most controversial case the Court decided in its early years was a case called Chisholm versus Georgia. Chisholm claimed the state of Georgia failed to pay him for goods that he had delivered during the Revolutionary War. US Attorney General Edward Randolph argued Chisholm's case before the Supreme Court.
The issue presented, whether Georgia was immune to suit because it was a sovereign entity, was fundamental in determining the power of the state governments in our newly developing nation. The year was 1793. That year, only two attorneys were admitted to practice before the Court.
Chisholm was argued before Chief Justice Marshall's appointment. It was decided before the seminal cases that helped shape the Supreme Court's role in our country, such as Marbury versus Madison. Our country had not yet recognized the importance of the Court, and so perhaps we can excuse Georgia for not sending to the Court a top-notch attorney.
It is, however, a little surprising that Georgia decided to send no one to argue its case. Georgia was unrepresented at the argument. It's evident from the Court's opinion that the Court agonized over the question as faithfully as if Georgia had been present by counsel. But the matter before the Court was difficult because it failed to present the opposing view, the odds were slanted against Georgia from the start, and it lost the case.
In the hue and cry that followed the decision, Congress intervened and passed the 11th Amendment to the Constitution. Since that day, parties with cases pending before the Court have tended to send the best legal advocate they can find.
One prominent lawyer who often appeared before the Court in the early days of our nation was a man named William Pinkney. Like many good oral advocates who followed, Pinkney served as attorney general for the United States. His specialty was maritime law. Because he started his legal career shortly before war broke out with Britain in 1812, you could imagine that he did a pretty good business. He argued 84 cases before the Supreme Court.
One of Pinkney's most important cases was the Schooner Exchange versus McFadden. In that case, a ship owned by Maryland merchants had been commandeered into the French navy. When the ship landed in Philadelphia, its American owners clamored for the return to them of the ship. Needless to say, the case had important international implications for our new country. On the one hand, a foreign government had taken property of American citizens. On the other hand, international relationships with France could suffer if the courts ruled against it. Pinkney, at the request of the president, presented the case on behalf of the French government.
The case was difficult. In delivering the opinion, Chief Justice John Marshall recognized that he was "exploring an unbeaten path with few, if any, aids from precedents or written law." Marshall's only guide in crafting that opinion was the oral argument that Pinkney delivered.
In presenting the case to the Court, Pinkney argued that "when wrongs are inflicted by one nation upon another, in tempestuous times, they cannot be redressed" by the judiciary. "The right to demand redress belongs to the executive department, which alone represents the sovereignty of the nation."
Chief Justice Marshall's opinion in the Schooner Exchange still serves as a bedrock case of international law. Today it's still cited by other nations as well as by our own Supreme Court, and the opinion gives credit to Attorney General Pinkney's excellent oral argument. Chief Justice Marshall ended his opinion by saying, "If this opinion be correct, there seems to be a necessity for admitting that the fact may be disclosed to the Court by the suggestion of the attorney for the United States."
Such accolades are rarely given by the Supreme Court, and Pinkney must have worn that one quite proudly. While the Court rarely recognizes advocates in the text of its opinions, Pinkney was only one in a long line of lawyers who have helped guide the Court through some murky doctrine and confusing legal issues.
Pinkney typically conducted his oral arguments in court in very fine style. He dressed flamboyantly. His manner was so proud that he was accused by some of being arrogant and conceited. On one occasion, an opponent in court believed Pinkney had treated him with contempt. This young man confronted Pinkney and explained that he had been insulted by Pinkney's manner.
Shocked and surprised, Pinkney agreed to apologize the next morning in open court. The young man who demanded Pinkney's respect was none other than Daniel Webster, quite possibly the only oral advocate whose reputation tops that of Mr. Pinkney. Webster enjoyed an extremely successful career in politics, including stints as a US senator and a secretary of state. But Webster's most lasting achievement was arguably his oral arguments before the Supreme Court.
Seth Waxman, who served as solicitor general under President Clinton, has put the point vividly. "In the realm of advocacy, Webster doesn't merely sit in the pantheon-- he is Zeus himself."
Among the prominent cases argued in the early 19th century, Daniel Webster argued McCulloch versus Maryland, Gibbon versus Ogden, and Charles River Bridge versus Warren Bridge, each of which continues to be an important case taught in law schools around the nation. In no oral argument, however, were Webster's oral gifts on better display than when he argued Dartmouth College versus Woodward in 1818.
As a graduate of Dartmouth College, Webster had a keen interest in defending his beloved alma mater in the case, which involved the application of our Constitution's Contracts Clause to private corporations. Webster opened his argument in Dartmouth College with the following sentence. "Eleemosynary corporations are for the management of private property according to the will of the donors."
Well, this simple opening was followed by a memorable conclusion. "Sir, you may destroy this institution. It is weak. It is in your hands. I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work. You must extinguish, one after another, all those great lights of science, which for more than a century have thrown their radiance over our land. It is, sir, as I have said, a small college. And yet there are those who love it."
The one contemporaneous observer of that argument commented, "The feelings which Webster had thus far succeeded in keeping down broke forth. His lips quivered. His cheeks trembled with emotion. His eyes were filled with tears. His voice choked. And he seemed struggling to the utmost to gain that mastery over himself, which might save him from an unmanly burst of feeling."
Webster closed his argument by analogizing the plight of Dartmouth College to the one confronted by Shakespeare's Julius Caesar. "When I see my alma mater surrounded, like Caesar in the Senate, by those who are reiterating stab upon stab, I would not, for this right hand, have her turn to me and say, Et tu, quoque, mi filii! And thou too, my son!"
Well, Webster was far from the only person in the courtroom who sought to suppress unmanly feelings. Chief Justice Marshall, who was presiding, was not a person easily reduced to sentiment. And he was reported to have had his own eyes filled with tears during Webster's presentation to the Court. And Justice Joseph Story, who was on the Court at the time, found Webster's presentation to be similarly moving.
Indeed, Justice Story was so impressed with Webster's Dartmouth College argument that he suggested it was impossible to capture fully Webster's "manner and expression, glowing zeal, the brilliant terms of diction, the spontaneous bursts of rebuke-- the sparkling eye, the quivering lip, the speaking gesture, the ever-changing and ever-moving tones of the voice, which add such strength and pathos and captivating enchantment to the orator as his words flow rapidly on during actual delivery."
Justice Story also recalled, "When Mr. [AUDIO OUT] minutes before anyone seemed inclined to break the silence. The whole seemed but an agonizing dream, from which the audience was slowly and almost unconsciously wakening." While I like to think that I've heard some good oral arguments at the Supreme Court, this description makes me wish I had had the opportunity to hear Daniel Webster.
Now, as one can tell from the description of Webster's argument in Dartmouth College, oral argument in the early days of the Supreme Court resembled nothing so much as entertainment. A prominent legal historian has noted, "In the days before radio and television, the public appreciated a good trial and a good courtroom speech."
One Supreme Court justice wrote in 1812 that "scarcely a day passes in Court in which parties of ladies do not occasionally come in and hear, for a while, the arguments of learned counsel."
Oral advocates today are far more restrained than they were in Webster's time. Indeed, if Webster were somehow able to view an oral argument at today's Court, there is a good chance he wouldn't recognize the event. During the early era, oral arguments often took hours, if not longer. Indeed, the argument in Dartmouth College lasted three days. The argument in Gibbons versus Ogden lasted five days. The argument in McCulloch versus Maryland lasted an incredible nine days.
Quantity, however, was not necessarily quality. Chief Justice Marshall purportedly once said that "the acme of judicial distinction means the ability to look a lawyer straight in the eye for two hours and not hear a damned word he says." Now, this statement is apocryphal at best. But if it were true, it would explain why the Supreme Court eliminated the practice of unlimited time for oral argument, which it did in 1846. With that change, the flamboyance of Pinkney and the days-long oratory of Webster ended.
Although oral argument became limited in time, its importance did not diminish. As a young attorney, Augustus Hill Garland remembered the day he was admitted to practice before the Supreme Court. "As I stood up before the Court and took the attorney's oath," he said, "my vision became disturbed and the judges all appeared to be at least twice the size they were and more than double in number. And the surroundings generally appeared magnified in like proportion." On that day, Garland listened to oral argument in two cases and remarked that the experience was "a feast not often spread before a young man struggling at the dim threshold of his profession."
Once Garland had a little experience under his belt, he practiced before the Supreme Court itself. But his practice was interrupted by a contentious time in our country's history-- the Civil War. When he returned to Washington, DC, at the end of the conflict, the cases that he had brought to the Court's attention shortly before the war began were still pending at the Court.
He wanted to continue representing his clients, but there was a problem. In 1865, attorneys practicing the US courts were required to take an oath that they had not voluntarily supported any authority hostile to the United States. While under the federal Test Oath Act, any lawyer who had not been loyal to the North could not practice in US courts.
Garland fought for his right to practice law again before the Court. In December of 1866, the Supreme Court declared the Test Oath Act unconstitutional, and Garland was able to represent his clients in those cases that had been pending before the Civil War. Garland won those cases for his clients, but the real victory was for Garland himself and for the Supreme Court, and those were very important, more so than the handful of his cases.
In one sense, Garland was very different from other talented oral advocates. He was not only a lawyer who argued in front of the Court, he had experienced the power of the Supreme Court firsthand as a beneficiary of its judgment. In another sense, Garland had much in common with the most prominent members of the Supreme Court bar. Like Pinkney before him, he was eventually appointed attorney general of the United States. In that capacity, he became very familiar with the Court. Not only was Garland able to contribute to the Court through his advocacy, but he wrote several books on Supreme Court practice.
His contribution was not restricted to substantive legal matters. Garland's familiarity with the Court led him to make several recommendations for the improvement of the practice of law. At the time, the Court had no page limits on the briefs that were filed, so lawyers took the chance to cram every last possible argument they could into the paperwork they filed with the Court. As Garland explained, "Not infrequently we see not briefs, but long essays, even books, in cases, drawing immensely upon the time of the Court to wade through them."
However fulfilling these immense masterpieces may have been to the advocates who wrote them, they didn't do much to help the Court focus its attention on the important issues in the cases. More troubling, those voluminous briefs were filed a mere six days before the oral argument. This left opponents three days to fashion a reply. As you can imagine, the usefulness of all those briefs to the Court was somewhat limited.
Today, the Supreme Court has imposed page limits on the briefs filed with it. Not only does the clock run while the advocates speak, they must marshal their best arguments in their briefs on a schedule well in advance of the oral argument. And these changes have served to hone and focus the oral arguments on the most important issues. It has allowed the justices to think better about the questions presented and prepare lines of inquiry that clarify and condense the issues.
The increasing relevance of briefs at the Court has not made oral arguments superfluous, however. By focusing attention on a few important issues, a good brief may sometimes lead to a great oral argument.
For instance, Justice Robert Jackson was a gifted oral advocate when he served as solicitor general of the United States. Some say Jackson had the best command of language of any justice who ever served on the Court. This from a justice who never went to law school.
He was a product of the public schools in Jamestown, New York. He did not finish college. And Jackson was crucially aware of the importance of his performance as an oral advocate. He said, "Over the years, the time allotted for hearing has been shortened. But its importance has not diminished. The significance of the trend is that the shorter the time, the more precious each minute."
Theatrical presentations featuring soaring rhetoric simply don't occur before today's Supreme Court. Those displays are now actively discouraged. The Guide for Counsel that the clerk of the Supreme Court gives to the lawyers who appear contains the following advice for newcomers. "The Supreme Court is not a jury. A trial lawyer tries to persuade with facts and emotions. At this Court, counsel should try to persuade the Court by arguing legal theories."
Reflecting the modern view of the purpose of oral argument, Justice Ruth Bader Ginsburg has said, "Oral argument is an occasion not for grand speechmaking, but for an exchange of ideas about the case, a dialogue or discussion between knowledgeable counsel and judges who have done their homework."
None of this is to say that oral arguments are boring. They are engrossing to the lawyers, the parties, and the judges. But modern oral arguments have somewhat limited appeal to the broader public because the Court's modern practice has honed in on the legal technical issues, rather than the emotional aspects of a case.
Perhaps no vignette better captures the change in oral argument style than the showdown that occurred in the cases collectively known as Brown versus Board of Education. The case of Brown arose out of South Carolina and featured John W. Davis arguing on behalf of the segregated school district against Thurgood Marshall, arguing on behalf of the NAACP Legal Defense Fund.
Now, Davis is often mentioned in the same breath as Daniel Webster as one of the most talented oral advocates to appear before the Court. Indeed, when Davis served as solicitor general of the United States, Chief Justice Charles Evans Hughes said it was nothing less than "an intellectual treat" to hear Davis argue.
Justice Joseph Rucker Lamar went one step further and said that Davis's persuasive argument style sometimes caused the justices to stop posing queries. "John W. Davis has such a perfect flow of language," said Justice Lamar, "that we don't ask questions when we should."
When Thurgood Marshall attended law school at Howard University, he would go to the Supreme Court at times to hear Davis argue. It would be difficult to exaggerate the esteem that Thurgood Marshall had for Davis. Marshall said, "I learned most of my stuff from him." Marshall, who argued and won many cases before the Court, said of Davis, "He was a great advocate. The greatest." "Every time John Davis argued, I'd ask myself, will I ever, ever? And every time I had to answer, 'No. Never.'"
With respect to their styles of presentation, Davis and Marshall were in marked contrast. Mark Tushnet, a professor at Harvard Law School, described it this way. "Davis's oral argument fit the public image of what oral advocacy could be. They were organized according to a rigid logic, had well-formed paragraphs that flowed easily into each other, and included the flowery eloquence characteristic of early 20th century oratory."
Tushnet, who served Justice Thurgood Marshall as a law clerk, noted that Marshall possessed a very different style of oral argument. "Marshall was able to capture the essence of his position in a phrase or two that established the common-sense morality of his cause," Tushnet wrote, "but he didn't hammer at that point. His style was almost conversational. When presenting the most far-reaching claims, Marshall's manner suggested that he and the justices ought to talk about the problems the justices might have, so that he and they could work them out as sensible people should."
In the desegregation argument itself, which would be Davis's last argument before the Court, the stylistic contrast was in full display. "Mr. Davis was quite emotional," Chief Justice Warren recollected. "In fact, he seemed to break down a few times during the hearing." And Thurgood Marshall said that Davis's cheeks were wet with tears when he returned to his seat following the conclusion of the case.
There is no case more important to this country's history than Brown versus Board of Education. Brown is of monumental importance, of course, because it promised the integration of black people that had been treated as less than full citizens. But a smaller part of Brown's legacy, one that has not received much attention, is the manner in which it illustrates the changing conception of what constitutes effective oral argument.
Where Davis's lofty eloquence and emotional appeals once caused him to be regarded as the finest advocate of his time, Marshall's understated method of answering questions with succinct answers proved to be the path of the future. As the style of oral advocacy has changed over time, it's hardly surprising that the style of questioning has also changed. Indeed, during arguments early in the Supreme Court's history, there were often no questions from the bench.
In 1824, one newspaper described the Supreme Court as "not only one of the most dignified and enlightened tribunals in the world, but one of the most patient. Counsel are heard in silence for hours without being stopped or interrupted."
While I like to believe that the Supreme Court has retained both its dignity and its enlightenment, its reputation for patience is on shakier footing. Today it's unusual for a lawyer to speak for more than a couple of minutes without being interrupted with a question.
In John Davis's famous address regarding oral argument, which he gave to the New York Bar Association, he handed down 10 commandments to oral advocates. Of particular value is Davis's sixth commandment, which requires that lawyers rejoice when the Court asks a question, because as Davis notes, "if the question does nothing more, it gives you the assurance that the Court is not comatose and that you have awakened at least a vestigial interest."
Moreover, if justices do not frequently ask questions of counsel, it's hard to understand how the purpose of oral argument differs from the written briefs. Oral argument is, among other things, an opportunity for judges to ask counsel questions about the relative strengths and weaknesses of their positions. An oral argument is a chance for counsel to respond to the justices' concerns and explain why ruling in a client's favor is the most appropriate course of action.
When the nine members of the Court assemble for oral argument, it gives a chance for the justices to also hear each other's concerns and views. This process is sometimes described as justices having a conversation with one another with the assistance of counsel. Sometimes it seems like that's what's going on. Not only do justices ask more questions, the kinds of questions justices ask have changed over time.
Barrett Prettyman, Jr., who was a law clerk at the Supreme Court during the 1950s, commented on the emergence of this trend. "There was a time, not many years ago," he said, "when a lawyer could feel reasonably confident as he approached oral argument in the US Supreme Court if he had thoroughly absorbed the record in his case and obtained a working knowledge of all relevant cases. No longer. Today an advocate must more than ever before prepare himself for a stream of hypothetical questions touching not only on his own case, but a variety of unrelated facts and situations."
And in the half century since Prettyman made these remarks, those questions have only increased. And this increase may be partly attributable to the number of justices who were previously on law school faculties. Justice Ginsburg, Justice Breyer, Justice Scalia have previously worked as full-time law professors, and Justice Stevens as well. Justice Ginsburg says, "that breed is addicted to asking 'what if' or 'suppose that'."
Members of the Court have expressed a wide range of opinions regarding the value of oral argument. On one end of the spectrum, Justice Oliver Wendell Holmes supposedly suggested to the Court's reporter of decisions that his view of a case was never altered by an oral argument. On the opposite end of the spectrum, Justice William Brennan thought that oral argument was extremely important. He said, "often my whole notion of what a case is about crystallizes at oral argument. Oral argument with us is a Socratic dialogue between justices and counsel."
During his stint on the Court of Appeals, our present chief justice, John Roberts, Jr., echoed Justice Brennan's sentiment. He said oral argument is a time, at least for me, "when ideas that have been percolating for some time begin to crystallize."
For my part, I always found oral argument to be very helpful in shaping my views of a case. Often I would enter oral arguments with an inclination to vote in one direction or another, but with some lingering concerns about my final conclusion. And often those concerns would be resolved by the end of the oral arguments.
People often ask me who the best oral advocate to argue before the Court was while I served on the bench. And there were many good oral advocates whom I heard, but no one presented better arguments on a more consistent basis than John Roberts, our current chief justice. Roberts possessed an unusually clear and straightforward manner of presenting his arguments, even in cases that were highly technical or arcane.
I understand he refined this style by always taking time to explain the gist of his cases to someone bright but untrained in the law. And I think other oral advocates would do well to take that page from Roberts' book.
Oral argument now is very different than it was in the early days of the Court, but one thing hasn't changed since the day when Chief Justice Marshall favored Pinkney with high praise. As Chief Justice Marshall recognized, a justice's best work requires the clearheaded guidance of a brilliant oral advocate. Perhaps that legacy explains why John Roberts had another tradition. Before arguing with cases at the Supreme Court, Roberts would always touch the hem of the enormous statue of Chief Justice John Marshall that's on the Supreme Court's ground floor. It's that connection between justice and oral advocate that has remained constant from the inception of the Court.
Now, I would like to use time that remains to encourage you to ask questions. It doesn't have to be about oral advocacy, but about things you want to know. You're welcome to ask. I may not answer, but you can ask.
[LAUGHTER]
[APPLAUSE]
[SIDE CONVERSATION]
I think there are some microphones if anybody wants to-- oh, and we can have somebody right here. OK.
- Our first question.
AUDIENCE: Yes, I'd heard that you'd had the opportunity to visit Ithaca High School earlier today.
SANDRA DAY O'CONNOR: I did.
AUDIENCE: And I would just like to hear your thoughts on this developing racial socioeconomic tensions, specifically the legal rights of the students involved and the role of Cornell University in facilitating those rights of those students.
SANDRA DAY O'CONNOR: I have no knowledge of the specific issues that may be of concern at the high school. I gave a general talk to some high school students in the auditorium, and everything was fine. But I--
[LAUGHTER]
I suggest, frankly, that those of you in the audience who are law students here at Cornell, see if there isn't some way in which you all can make contact with students at the high school, just to provide general help and counseling. Not legal advice, because that's left to the lawyers for any specific grievance. But maybe your participation. Why don't you help them conduct some mock trials or something? And teach them a little bit about the legal system. I'm sure it would be welcome.
[APPLAUSE]
- The question here.
AUDIENCE: Yes. So back in the good old days with Brown versus Board of Education, where it was established that a 9-0 justice rule was required, and I think--
SANDRA DAY O'CONNOR: Well, it wasn't required.
AUDIENCE: It [INAUDIBLE] required, but the justices convinced all the other justices that 9-0 was needed. But nowadays--
SANDRA DAY O'CONNOR: Well, now, you see, it was very complicated, actually, because that case went over two years. It was argued first when Chief Justice Vinson was chief, and the Court was unable to reach a conclusion. And the case was put over, which is very unusual.
In the meantime, Chief Justice Vinson retired and Earl Warren was made chief justice. The case was re-argued. And Earl Warren, in his first year of service of the Court, wanted very much to have unanimity if he could get it, and miraculously he did.
AUDIENCE: But my question actually links to nowadays. Everything is heavily politicized in the Court, even though the Supreme Court was established to be non-politicized by lifetime positions. Do you ever see a time later on the future where we see a back, like every 9-0 [INAUDIBLE]?
SANDRA DAY O'CONNOR: I don't think everything is politicized at the Supreme Court. I've been there pretty recently and that was my impression.
[LAUGHTER]
Now, in today's Court, a number of cases are still unanimous. I would say about a third of the cases are unanimous. It would be lovely if they all were. Reality is that the issues that the Supreme Court takes tend to be the ones where lower courts across the country have reached conflicting holdings on the issue. That doesn't make the issue political, it makes it hard. It's issues on which you can make good legal arguments on either side. Not political arguments, legal arguments.
And it is not surprising that sometimes the justices, like the lower courts, have different views on a case. And so many of the cases are resolved by less than a unanimous opinion.
William Brennan, when I came to the Court 25 years ago in 1981, used to meet with his new law clerks every year. And he'd hold up his hand, like that. Five. They'd say, what's important, Justice Brennan? Five.
[LAUGHTER]
Because unless he could get five votes, he didn't have a holding of the court. And he was perfectly content with five votes. Five. That gave him a court. And there's still plenty of cases decided by only five votes. And it's OK.
Our nation-- now, in the early days of the country-- John Marshall presided for 34 years-- and they met in a boarding house. They only came to Washington a couple of months a year because they didn't have enough business to keep them here all the time. They lived in a boarding house, had their meals together, talked about the cases, and John Marshall would say, I'd be happy to try to write it up if you want me to. And they'd all say, yes, you do that.
[LAUGHTER]
And he did. And they were usually unanimous. But it's a different era now. And we can tolerate a little bit of dissent, I think. It's all right. And if it's a statutory issue, it's great to have dissenting views because then the Congress can go back and read them and decide what Congress wants to do. They can change the laws, and sometimes they do.
If it's a constitutional issue, Congress can't just change it. You have to amend it, and that's pretty hard to do. But I think it's not surprising that we have dissenting views, and I don't think they're all political. Thank you.
[APPLAUSE]
AUDIENCE: You spoke about several important cases in history. It seems one of the challenges to meaningful judicial review today is the post-9/11 expansion of the state secrets privilege, which in many cases involves the executive telling judges, of course, this is too secret for even you, a judge, to review, even in camera, even in secret. And we've seen that explode since 9/11 under the Bush administration.
Do you have any views you'd be willing to share on the expansion of that privilege? Do you think judges should, in certain situations, defer to the executive and not review the underlying claim of a secrecy privilege?
SANDRA DAY O'CONNOR: I'm not going to make a statement on current applications, but I will note that over time there have been a few precedents upholding the executive's choice of keeping something secret. And I'm sure there have been other cases at different levels that have gone the other way. We are in a very unusual period of history in our country, presenting a great many issues on the separation of powers. It's amazing.
It would be fun to be a law student today because it's just an astonishing number of separation-of-powers issues. You must have a wonderful time in law school debating those things.
[LAUGHTER]
Now, there is a-- you heard there was a new law school out in Arizona named for me, and another one of my former law clerks, who's on the Arizona Supreme Court, and I are teaching a little class at that law school on separation-of-powers issues. Maybe you better come out and join the class. Will taught me that.
AUDIENCE: Thank you.
[APPLAUSE]
- Could we--
SANDRA DAY O'CONNOR: Over here? It's all right. It's all right.
- Yeah. OK.
AUDIENCE: Thank you very much for coming. As we've heard today in your introduction and read elsewhere that you've done a lot of good work when you were on the bench. So what kind of footprint do you see yourself that you've left when you left the Supreme Court?
SANDRA DAY O'CONNOR: Oh, I don't know. I leave that to the historians. And frankly, I think that current books written by news media types are not the best biographies. I think you need to wait a while, let the dust settle, let a period of time elapse, and then maybe take a crack at the biography. So I'll leave that to somebody else.
Yes.
[APPLAUSE]
AUDIENCE: This is regarding the 2000 election. It is in the Constitution that a disputed election goes to Congress. Why did that vote, that decision go to the Supreme Court? Do you regret your vote on that day? And can you please share your experience-- what feelings, what went on, what thoughts went on? Because that vote was very critical to our country.
And I voted for Al Gore and I think he's our rightful president. And--
SANDRA DAY O'CONNOR: Well--
AUDIENCE: --whatever you think--
- You OK?
AUDIENCE: --about impeachment, if you can please talk about that as well. Thank you.
[APPLAUSE]
SANDRA DAY O'CONNOR: I think that's more questions than I'm going to address. But the case, I think you don't mean 2000. I think you mean 2004, probably. And the case-- anyway, all right. The case that the Court took, Bush v. Gore, was certainly controversial because it was in the middle of a presidential election. And the election was very close.
Now, the Court's decision rested on federal law. Federal law applies to presidential elections. It's a national election. And the allegation was that the Florida officials were not correctly applying federal law in counting the votes. I mean, that's a perfectly OK federal issue.
Now, what bothers people about that election is that the popular vote was for Mr. Gore. He won the popular vote-- not in Florida, but nationwide. He won it. And we have a very odd system in this country of an electoral college system for presidential votes. We don't allow people to vote in presidential elections for the candidates. They vote for electors who then meet and decide how the electors are going to cast their votes.
And it's up to each state in the United States to decide whether it's the winner take all for the electoral votes. So that in a state with, let's say, nine electoral college votes, if it's 5-4, most states say that the winner takes all. So all nine go to whoever the five voted for. A few states in the United States allocate the electoral college votes as they were actually cast, so that it would be 5-4 within the state.
Now, I can understand how many voters in that election felt they were deprived of their choice, as you feel you were, because the popular vote did go to Mr. Gore. Florida ended up having a challenge, and what the Court did was effectively stop the recount procedure. And you can quibble about that if you wish. It was very late in the electoral process and the Court finally decided there had been error and they put a stop.
Now, there were three recounts afterwards, conducted by different members of the press, of the votes in the four contested Florida counties. In not one of those recounts would the result have changed. So I just think at the end of the day, I understand your frustration because of the popular vote nationwide, but that would require a change in the constitutional structure. And I suspect the nation isn't ready to do that. I don't know, but it's arguable.
You know, California is talking about some of that right now.
Yes.
- I think we have time maybe for just one more question.
SANDRA DAY O'CONNOR: All right.
[APPLAUSE]
AUDIENCE: The Supreme Court, being the highest judicial body in the country, obviously deals with the most complicated and far-reaching issues. And we have had a lot of very recent arguably political 5-4 decisions.
SANDRA DAY O'CONNOR: Well, let's not say they're political, OK? We just went through that.
AUDIENCE: All right.
SANDRA DAY O'CONNOR: They're arguable, all right, but--
AUDIENCE: If you were to pick one case within, say, the last eight years or so that you probably came the closest to voting the opposite way on, what would that case be and why would it be that you had voted differently?
SANDRA DAY O'CONNOR: Minnesota versus White. And it was a case involving the First Amendment right of free speech in the state of Minnesota in a judicial election. And it involved whether the judicial candidate could assert a right to answer questions about his views on certain things, despite rules of the state that said that judicial candidates should refrain from answering certain questions. And the Supreme Court said that the judge had a First Amendment right to answer them.
Now, the problem I have, looking back-- and I try never to look back on decisions that I've made. But the problem that has emerged since that decision was handed down is that a majority of our states still have partisan election of judges. Did you know that? State judges.
And my personal view is that that's not a very good way to select judges. That partisan elections mean you're going to have a lot of money coming in by different interest groups to fund the candidates. You have big business that want certain results in tort litigation. You have lawyers who want certain judges on their side. And big money changes hands in those elections.
In the 2006 elections, the money that was given for judicial elections would shock you in at least eight states. And part of that has been stimulated by Minnesota versus White. And interest groups are now sending out questionnaires to these candidates, asking them all sorts of questions on their views on issues that may well not even come before the Court. And the judges have to decide whether that's something they can refrain from answering altogether, or what has to be done.
I think there are real problems as a result of that case and I am very concerned about what it's doing to this country to have partisan election of judges and big money changing hands. I think we should keep cash out of the courtrooms. Thank you.
[APPLAUSE]
STEWART SCHWAB: I've got a little gift to give you over at the podium.
SANDRA DAY O'CONNOR: [INAUDIBLE].
STEWART SCHWAB: Oh, they're insisting. It's just a little thank you-- it's the Konvitz tape, if you will. So let's go over here.
Well, Justice O'Connor, I am just certainly so personally pleased, as one of your former law clerks, that you were able to be here at Cornell for these several days as the Distinguished Jurist in Residence. And on behalf of all of Cornell University, especially pleased that you were able to give this Konvitz Memorial Lecture. It has been most thoughtful, interesting, and useful.
I have a little gift for you as a token of our appreciation. And what it is, is some of the collected tapes of Milton Konvitz on his class--
SANDRA DAY O'CONNOR: Great.
STEWART SCHWAB: --The American Ideals. Thank you very much.
[APPLAUSE]
SANDRA DAY O'CONNOR: That's a wonderful gift, and I hope I can play him in the car when I'm driving away. Gonna have something worthwhile to listen to. Thanks a lot. OK.
STEWART SCHWAB: Thank you all.
[APPLAUSE]
Sandra Day O'Connor, retired Justice of the U.S. Supreme Court, delivers the ILR School's Milton Konvitz Memorial Lecture at Bailey Hall. The lecture is part of Justice O'Connor's visit as the Cornell University Law School's 2007 Distinguished Jurist in Residence.
