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In the term that ended June 27, the Supreme Court tackled the constitutionality of Ten Commandments displays, the power of governments to take private property, and the legality of medical marijuana laws, among many other issues. On July 6, Legal Times held its fourth annual Supreme Court review, moderated by Supreme Court correspondent Tony Mauro, with insights from four legal luminaries who argued cases before the Court this past term. The event was sponsored by West Group and took place at the Georgetown University Law Center. Participants were greeted by Legal Times publisher Ann Pelham and by Charlotte Garrison, director of marketing for West Southern Division. What follows is a transcript of the event, edited for length, clarity, and space. — The Editors
Tony Mauro: Even before [July 1], we had a lot to talk about: a term in which the Court decided cases relating to the Ten Commandments and on federal sentencing guidelines and on issues of federalism; on file sharing and copyright infringement; and, yes, cases some of us called the steakhouse docket � beef-marketing ads and importing wine across state lines. And whether you want to tack the marijuana case onto that list of guilty pleasures, it’s up to you. But then [July 1] came, and we have even more to discuss. Instead of Chief Justice William Rehnquist retiring, which many people were expecting, it was Justice Sandra Day O’Connor. After 24 years she told the world that she was going to be retiring. It was a remarkable run. Glen, I know you generally don’t speak about Justice O’Connor in the way that some former clerks do about their justice, but I hope you can tell us your own thoughts about the news of her retirement and about her legacy.
PARTICIPANTS
• MODERATOR: TONY MAURO, Supreme Court correspondent, Legal Times and ALM
• PAUL CLEMENT, solicitor general, U.S. Department of Justice • DAVID FREDERICK, partner, Kellogg, Huber, Hansen, Todd, Evans & Figel • GLEN NAGER, partner, Jones Day • DAVID FREDERICK, professor of law and director of the Constitutional Law Center, Stanford Law School; of counsel, Quinn, Emanuel, Urquhardt, Oliver & Hedges

Glen Nager: The last few days have been surprisingly very emotional ones for me personally. I was a part of the first group of clerks that she actually hired. And so for me, her retirement is somewhat of an end of a part of my life on a professional side. On the personal side, I’ll just say a few anecdotes to give you a sense of the person who I’ve known since the time she went on the Court. She is not only an appointee of Ronald Reagan, but I think a manifestation of Ronald Reagan. She had the same zest and upbeat, positive love of life that I think President Reagan had, and she shared his Western roots. She always took her law clerks out of the Court for field trips and constantly threw parties. I remember one incident: We were having a party � I think it was March � and she turns to us and she says, “You know, we don’t have a party for April.” And then she looks at me and she says, “You know, you and Amy have been going out for quite a while. An engagement party would be very nice.” [Laughter] Eventually, Amy and I did get married. [Justice O'Connor] couldn’t attend the wedding, but she sent an Order of Court to the wedding declaring that we would have a long and happy marriage. We celebrate our 20th this year. She and [husband] John were sponsors of me personally to the country club that I belong to, which has an incredibly difficult application process where you have to have a cocktail party with the board of governors before you can get admitted. As my co-sponsor, she took me to the cocktail party. She had a broken arm at the time from a skiing accident. So she had her arm in one sling and her other arm around me. She had 15 minutes, and in 15 minutes she managed to go around to every board member at the Chevy Chase Club and say, “Hi, I’m Sandra Day O’Connor. This is Glen � he’s part of our family. Wouldn’t he make a wonderful member of the country club?” And I got in. There’s lots to remember her for, and history will be the judge of her contribution to the Court. But for those who had the special honor to work for her and have her as part of our lives � if there’s one thing that I hope to give to my children is to give them an example to follow, and she certainly gave me one. Mauro: David, it was often said, I think, that the lawyers who argue before the Court almost always tailor their arguments for Justice O’Connor’s ears. Is that true? And what does that entail? David Frederick: I remember one argument where it was so obvious that she was the swing vote that the counsel spent the entire time looking only at Justice O’Connor. A question would come from the left and a question would come from the right, and he would answer just making eye contact with Justice O’Connor [laughter], which I thought was a rather extreme manifestation of the tendency of pitching an argument to her. But I had the experience four or five years ago in arguing a case called Idaho v. United States, which is an obscure case that is otherwise forgettable for everyone in this room but me. The case involved ownership of submerged lands in a lake in Idaho and whether or not those lands were held in trust for the Coeur d’Alene Indian tribe. The state had argued first and had given some unsatisfactory answers about why all this mattered. And then the tribe’s counsel got up, and he gave even more unsatisfactory answers about why this mattered. Justice O’Connor was typically the first justice to ask questions in an argument. You knew right away where she was coming from when she would ask questions, and for both of the previous advocates she had jumped in, asked the first question, and it was, “Why does this matter? Why did it matter to the Coeur d’Alene Indian tribe back in the late 19th century that they should own these submerged lands?” And so I’m the third advocate up, and I knew it was coming, and I’m not even sure I got to say, “Mr. Chief Justice, and may it please the Court,” before Justice O’Connor jumped in and said, “Well, Mr. Frederick, what about it? Why does this matter?” And I said that the history had shown that this tribe had harvested water chestnuts and other plants on the submerged lands, and this had been an important source of food for them. She sat back very satisfied. And I remember sweeping to the left, and Justice [David] Souter kind of looked at her and had a little smile on his face. At the time in the hurly-burly of the argument, I didn’t think anything of it. But Justice Souter writes the opinion � it’s a 5-4 majority � and on about the second page of the opinion he’s talking about the water chestnuts. So it was not really a direct pitch for her vote that had been planned in advance, but we had thought about why it mattered to the tribe that they should continue to own and that they had owned the Coeur d’Alene submerged lands. Justice O’Connor was a wonderful presence at oral argument because she asked what she cared about. She came to argument with usually a few questions that were troubling her, and she just asked them. She got them out on the table, and you knew where she stood typically by the way she framed the case. It tended to be in the most controversial cases, and sometimes the closest ones, when she would ask no questions or very few questions. And I always took that to be that she wasn’t quite sure what she wanted to do and she wanted to listen to what the advocates had to say and what questions the other justices wanted to pose before she made up her mind about the case. Mauro: Paul, what are your thoughts about Justice O’Connor and her departure? You clerked for Justice [Antonin] Scalia. I always wondered how they got along and whether Justice Scalia ever regretted the unpleasant things he would sometimes say about Justice O’Connor in the footnotes. [Laughter] Paul Clement: Well, Tony, let me start by talking about Justice O’Connor more broadly, and maybe I could try to circle back to that. If I don’t get to it, well, I don’t get to it. [Laughter] I think, obviously, Justice O’Connor leaves a remarkable legacy in her 24 terms on the Court. She is somebody who has always been really a critical vote for any lawyer to try to get in any case. And she has, by virtue of her approach to cases and her preference for more case-specific standards, balancing tests, and the like, she has really been a justice who’s felt like in virtually every case you would have some chance of getting her vote. If you looked around at the other justices on the Court and how they might shake out in that particular case, it often would occur to you that she would be the critical vote for you to get. And so I think by dint of that she’s had a tremendous influence on the Court. I think that in some ways this term is a little bit of an exception that proves the rule � in the sense that in this term there were a number of important cases before the Court where Justice O’Connor, at the end of the day, found herself in dissent. Before the news of [July 1], I think that was one of the themes that really emerged for me from this Court � how unusual it was to see Justice O’Connor in dissent on everything from the juvenile death penalty case to the property rights case, in the case involving medical marijuana, in one of the Ten Commandments cases, and in at least half of the criminal sentencing cases. To find her in dissent in that many big cases is very unusual. I think a number of people have commented that if you look back on this term with the benefit of the knowledge that Justice O’Connor did in fact step down, there’s almost a sense in which maybe the fact that she knew that she was leaving � the only person in town apparently that knew this � in a kind of way allowed her to make some dissents that stood on broader principles than maybe she typically did in many of her cases. The thing that I want to say also about Justice O’Connor � because it’s a side of Justice O’Connor that I had an opportunity to see � is that Justice O’Connor, in addition to her many other skills and attributes, was a natural-born diplomat. I had the opportunity to see her in a couple of settings where she dealt with justices from other countries, and in that capacity was something of an ambassador for the Supreme Court itself. She was so tremendously skilled at conveying a sense of the American respect for the rule of law and her own tremendous respect for the Supreme Court as an institution. That I think is something I’m sure where the other justices will pick up the slack, and other justices are capable of doing. But based on what I observed, that was really a unique skill that she brought to the Court and is also a role that she very much enjoyed. Mauro: Kathleen, you were dean of the law school that Justice O’Connor attended. What are your thoughts about her and her legacy from the sort of broader perspective of the constitutional law professor? Kathleen Sullivan: Well, Tony, I would echo everything that has been said about what a magnificently gracious and diplomatic and charismatic person she was. Remember, she’s the only member of the current Supreme Court who was elected to public office, and boy, did she command an audience. We had her back to her alma mater, Stanford Law School, where she finished at the top of the class in 1952, on a number of occasions. She came back for a mock retrial of Lizzie Borden, where the audience acquitted, but I think that Justice O’Connor was rather dubious. She came back to rehear the Steel Seizure Case in autumn of ’01. Issues of presidential powers in times of national emergency had taken on new urgency. Together with her classmate Chief Justice Rehnquist, she presided over a magnificent mock argument of those issues that managed to straddle between the history of 1952 and Truman seizing the steel mills and the challenges facing President Bush in 2001 with remarkable grace and deep insight. She came back, kindly enough, to inaugurate the first woman dean of any school at Stanford University � myself � and on a big stage in the quadrangle, under a full moon and the palm trees, was exceedingly gracious and generous in her remarks. But what really got her was that my grandmother was an O’Connor, and she decided that if I came from an O’Connor line, I must be all right. [Laughter] She was magnificent. She could hold an audience with one arm tied behind her back. At Stanford, when I asked her to remember some of the justices who had departed us recently at that time, she talked about Chief Justice [Warren] Burger, who escorted her up the Supreme Court steps on that historic occasion when the first woman joined the lineage of Supreme Court justices, and about Justice [Thurgood] Marshall. And there wasn’t really a dry eye in the house from the group of Stanford alumni when she recalled Justice Marshall’s life and how much he had contributed and his advocacy efforts and his time on the Court and how he had done more than most Americans ever do to change the lives of so many. I agree with what the solicitor general said about her immense pride in the rule of law and the role of the Court and its place among the courts of the world. She came to Stanford and talked about going and sitting with justices in other nations of the world and their admiration for how we can get our decrees enforced. And when we talk about her as the swing voter � a person who helped pull the center of the Court and keep the Court on a kind of rudder that kept it from tilting ideologically extremely to either pole � I think she was cognizant of that role, of the Court’s place in the nation’s history and its place in the world stage, and that the Court is a place in which no justice is the captain of any one ideology or any one political party or any one group of advocates, but tries to decide cases as they come, in part to be practical and to care about the people whose lives are affected by those cases and also, in part, to keep the Court in the revered place it holds in American life. But I think it would be a mistake, Tony, to just remember her as a swing vote. It’s true she was the key vote in the affirmative action cases out of Michigan upholding some use of race preferences, but not if it’s too mechanical. She was the swing vote in upholding campaign finance laws in the McCain-Feingold case. She was the fifth vote to uphold or strike down religious symbols under the establishment clause, depending on whether they convey too much of a message of endorsement. It’s true she was the swing vote in many of these cases � and I could name quite a few more � but I think it’s important to remember that she also was a powerful theorist for a number of the leading tests by which we decide things. Let’s take federalism, for example. She, more than any other justice, wrote out a theory of federalism that said that the federal government shouldn’t be able to tell the states what to do, shouldn’t be able to commandeer local sheriffs to do handgun background checks or to commandeer what New York does with its radioactive waste. She wrote those opinions in New York v. United States and other cases because she was echoing Madison in the Federalist Papers on the double security we have from separation of powers in federalism and the vertical division of power between the federal government and the states. And we shouldn’t have the federal government telling state officials what to do and then having the state officials take the fall. That theory of commandeering was a powerful and very consistent theory that she held on the Court, and helped take this federalist revolution to the extent that it went. We saw her, as the solicitor general just mentioned, reigning in dissent on the last week of the term, reigning in dissent on the medical marijuana case out of California. She voted against wine shipments and for medical marijuana, but I don’t want you to draw any inferences from that other than she was consistently for states’ rights. In the [Gonzales v.] Raich dissent that she wrote in the medical marijuana case, she really again reiterated this theory of federalism. So the notion that she was in any way capricious and inconsistent I think is quite wrong. She had powerful theories, but they were often centrist theories. Another one would be the reasonable-observer test. The leading test of what is an “establishment,” conveyed through a public endorsement of religious symbols, is her test, which has survived many cases, including the two Ten Commandments cases this term, according to the way it came out. Lastly, I just want to say she was appointed to the Court at the very time that I graduated from Harvard Law School, in 1981. She went to Stanford Law School in 1952, at a time when women were only 1 percent of the class. When I graduated from law school, women were about a quarter of the graduating classes in American law schools. And as she steps down, women are over 50 percent of law school classes. I cannot imagine a better role model for women lawyers than someone who modeled grace, professionalism, incredible intelligence, and preparation. She also models someone who didn’t take no for an answer. She was offered secretarial jobs when she graduated third in her class from Stanford Law School, rather than a position in a law firm. And yet she found a way through working for the government, opening a storefront law office in a Phoenix shopping center, to going on to the state bench and then to the state Senate. She found a way to fashion a legal career that eventually took her to the most powerful position, not only of any woman lawyer in America but any lawyer in America in many respects. She did that with an incredible grace and incredible professionalism while loving and raising a family. I cannot imagine a better person to model being a woman lawyer for a generation of women law students.

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