Sandra Day O'Connor, Supreme Court Justice

Landon Lecture
February 16, 1988

Establishing Justice

Thank you, President Wefald and Chairman Slawson [Chairman, Kansas Board of Regents], students and friends of Kansas State University. John and I are absolutely delighted to be here in Manhattan with you at the University, and you're showing some very beautiful weather to us, which we like too much better than in Washington, D.C. And, of course, this is the home state of two distinguished senators, and one of them, Senator Nancy Kassebaum, has encouraged me for several years now to try to accept the invitation to deliver the lecture named for her father. Now I confess that I have one keen disappointment in connection with this visit: I accepted your invitation too late to meet Mr. Landon, who passed away last year, and I wish that I had had the foresight to have accepted a couple of years ago and had the chance to meet him. He, through the lectures, has brought some wonderful people to the University. You don't have to go to Washington to see the nation's leaders they come to you right here in Manhattan.

It is an interesting time around the nation with the presidential primary elections taking place and international treaties being debated in the Senate. It is also a time when we have witnessed the nomination and confirmation process at work in selecting a new justice to fill our Supreme Court bench, and when I return to Washington, D.C., this week, on Thursday I will participate in the ceremony during which Justice Kennedy will be installed to round out our bench again at a full nine.

All of us who watched the Judiciary Committee hearings on Judge Bork and Judge Kennedy learned considerably more about some of the legal issues addressed in the federal courts. And we learned something about the process of selecting Justices for the Supreme Court. Today I am going to discuss a bit of history that profoundly affects that process and explains how it is that our Constitution came to provide for an independent federal judiciary selected by the President with the advice and consent of the Senate.

As we all know, 201 years ago in Philadelphia fifty-five delegates from twelve states at the Constitutional Convention set their minds and their hearts to work in order, they said, "to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity."

The delegates told us their purposes at the very start of their final draft of the Constitution. If the order of the list of their purposes means anything, "establishing justice" was particularly important; it ranks second only to forming a more perfect union.

Many things are involved, of course, in an effort to "establish justice:" enumerating rights possessed by every individual, setting standards for holders of public office, and placing limits on the powers of government are just a few of the examples. In a sense, the whole of the Constitution was an effort to establish justice by establishing a just government. But from my perspective as a judge, one thing that "establish justice" surely means is the establishment of a judicial system.

The recent debates of the nominations of a new justice to replace Justice Powell have focused public attention on the Court and have led to questions concerning the Court's role in our constitutional structure, its power, and the manner in which it operates. The answer to all these questions lies in Article III of the Constitution, creating the judicial branch of our government.

The framers of our Constitution set for themselves a broad agenda. They were to create an entirely new structure of government. That we are still here with that structure intact is a powerful testament to the skill and wisdom they have applied to that task. Whether the fact that thirty-three of the delegates were lawyers accounts for much of that skill I cannot say. The breadth of their work, however, often makes it difficult to define precise guidance from their deliberations, for in certain instances there was little debate concerning particular provisions.

In reviewing the records of the Convention, one is struck by how little attention was paid to the judicial branch in contrast to the extended debate concerning the composition and the structure of the legislative branch and the manner in which the executive should operate, which spanned months. The intermittent debate over the judiciary could easily have been conducted in a single afternoon. Perhaps the delegates had exhausted themselves on other matters and were worn down by that hot Philadelphia summer when they finally turned to the judiciary. After all, they did not begin to discuss in earnest the more difficult question of resolving the structure of the Legislative Branch until after the Great Compromise was reached.

But comments made in the course of the debates that did take place concerning the judiciary suggest another reason: the general lack of controversy about it was due not to exhaustion of the delegates, but to a general high regard for the judiciary.

The experience with a despotic monarchy, and with state legislatures the framers felt had run wild, led to a wary, if not disparaging, attitude toward the legislative and executive branches. A single executive was seen by Edmund Randolph of Virginia as dangerously close to a monarchy. James Madison worried that the executive might "pervert his administration into a scheme of peculation and oppression." The legislature fared even worse in the delegate's minds. Governor Morris predicted that "the legislature will continually seek to aggrandize and perpetuate themselves." And in the view of Nathaniel Gorham of Massachusetts, "public bodies feel no personal responsibility, give full play to intrigue and cabal and engage in dishonorable measures."

In contrast, the framers had only kind words for the judiciary. Oliver Ellsworth of Connecticut, for example, who became the third chief justice of our court, saw the judiciary as possessing "wisdom and firmness" and "a systematic and accurate knowledge of the laws." James Madison was even more effusive, arguing that the judiciary would preserve "a consistency, a conciseness, perspicuity and technical propriety in the laws." And James Wilson pointed to the example of Great Britain where he felt the "security of private rights is owing entirely to the purity of her tribunals of justice."

Because they held judges in relatively high esteem, the framers were somewhat less concerned with acting and erecting checks on judicial power than they were with creating similar checks on the other two branches. Perhaps there are those today who think our judges might not deserve such favored status, but in the minds of the framers at least, the third branch was the least dangerous branch.

When the framers did get around to discussing the judicial branch, they were faced with three primary questions: first and foremost, should there be a federal judiciary at all, and if so, should it be limited to one supreme court or include as well a host of lower federal courts; second, who should select the judges for whatever courts were established; and last, what should be the terms and conditions under which those judges would serve? All of these issues were eventually addressed or intentionally not addressed and the result is the federal judiciary we have today: a third branch of 749 active judges and over 18,000 employees.

The idea that there should be some sort of national judiciary was present from the very start of the Convention. The Virginia Plan, which set the groundwork for virtually all that was done at the Convention, provided that a "national judiciary be established to consist of one or more supreme tribunals and of inferior tribunals to be chosen by the national legislature." On the second full day of deliberations, the Convention approved a resolution that said, "a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary." Within two weeks the delegates began considering a more detailed resolution on the national judiciary.

Starting with the language of the Virginia Plan, the framers merely amended it to provide for "one supreme tribunal and one or more inferior tribunals." This version was approved by the full Convention without debate. Though the question of inferior tribunals was later briefly revisited, the passage of this resolution left us with the Supreme Court we have today.

Alexander Hamilton in the Federalist Papers offered some insight into why there was so little debate about creating the Supreme Court. He wrote that "laws are a dead letter, without courts to expound and define their true meaning and operation." Now this may be overstating the role of the courts, but Hamilton's basic point was that the laws created by the new national government would inevitably wind up in court, and thus a new national court was necessary to interpret them. Hamilton noted that "all nations" had found it necessary to establish "one tribunal paramount to the rest. . . authorized to settle and declare in the last resort an uniform rule of civil justice." Since the framers were attempting to establish one unified nation, they naturally wanted one uniform set of laws. And they felt that only a single national Supreme Court could ensure that the national laws would be uniformly interpreted and applied.

This desire for uniform interpretation and application of the laws continues right to the present. My colleagues and I on the Supreme Court usually choose to review cases that present issues over which lower courts have reached conflicting holdings. We find resolving such conflicts to be so important that we have incorporated this factor into our Rules as a consideration governing review on certiorari.

The people have also demonstrated their desire for uniformity in the application of our national laws. In the 14th Amendment, added to our Constitution in 1868, "equal protection of the laws" was elevated from a worthwhile goal to a constitutional imperative. And we on the Supreme Court have a very concrete, daily reminder of the need for uniform application of the laws: our building is inscribed with the words "Equal Justice Under Law."

There is another reason the framers found one supreme tribunal indispensible. Simply put, judges could not be trusted to agree with each other. In an observation as true today as it was 200 years ago, Hamilton noted in the Federalist Papers that "We often see not only different courts, but the judges of the same court differing with each other." This could certainly be said of the Supreme Court today. Of the 175 cases in which we heard argument last year, there were differing opinions in all but 25. The framers recognized that since we judges could not seem to agree, the only way to get a final answer was to have one final court of last resort. In short, Hamilton accurately reflected the attitude of the framers toward the Supreme Court when he said that the need for "one court of supreme and final jurisdiction is a proposition which is not likely to be contested."

While notwithstanding the agreement concerning the need for a Supreme Court, the issue of the lower federal courts inferior tribunals in the words of the framers was hotly contested. Only one day after the modified Virginia Plan resolution sanctioning "one or more" inferior courts had been approved, John Rutledge of South Carolina, who later was nominated as a Chief Justice of the Supreme Court, moved to reopen debate on the proposition. He argued that the Supreme Court itself was sufficient to ensure uniformity and that lower federal courts would be too great an intrusion on state courts. Another delegate echoed this concern, lamenting that "the people will not bear such innovations," and predicting that the states would revolt at such encroachments on their jurisdiction. Roger Sherman joined the opposition to inferior courts, but he cited no such lofty concerns as state sovereignty. For him it was a matter of simple economics. He saw lower federal courts as an expensive redundancy because the state courts were already in place and could do the same job.

James Madison was not swayed. He stuck to the Virginia Plan's proposal, offering an argument that made him a dear friend to all Supreme Court Justices. He was concerned that unless there were inferior federal courts dispersed throughout the country with final jurisdiction in many cases, the appeals to the Supreme Court would be oppressive in number. Now Madison thus became the first to express concern with the workload of the Supreme Court. And while this argument alone sounds more than sufficient to a Supreme Court Justice faced with today's large workload, Madison had another motive for supporting lower federal courts. He worried that without lower federal courts, the Supreme Court would be left powerless. Having no federal trial courts to rely on, the Court would be forced to merely send cases back to the State courts, which he feared would simply come up with the same results again. Providing no lower federal courts, Madison warned, would leave, he said, "the mere trunk of a body without arms or legs to act or move."

The rest of the delegates were unmoved by Madison's elegant plea. By a five to four vote, with two state delegations divided, the Convention voted to eliminate the lower federal courts altogether. The consummate politician, Madison immediately offered a compromise; he proposed an amendment empowering the legislative branch to institute inferior federal courts, without mandating that it do so. This solution garnered overwhelming support.

Thus, only nine sessions into the Convention, the delegates had already agreed on the basic structure of the judicial branch of government. The result was the first clause of Article III, section 1 of our Constitution, which reads as follows: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish."

Well after spending the month of June hammering out the structure of the other two branches of government, the framers returned to the judiciary and the remainder of Article III on July 18, when they resolved the important question of who should select the judges.

The Convention's earliest discussion of who should exercise the power of appointment took place in the course of the delegates' approval of the idea of a federal judiciary. Now Benjamin Franklin slyly suggested that we use the method employed in Scotland. As Franklin explained it, in Scotland the judges were selected by the lawyers, "who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves."

The Virginia Plan had called for appointment by the National Legislature. Agreeing with this scheme, Madison had initially argued for selection of the judges by the Senate. But after the Great Compromise had left that body composed of an equal number from each state, he, together with other delegates from the larger states, changed his tune, favoring Executive appointments instead. Those from the smaller states, predictably, favored legislative appointment.

With the battle lines drawn, some hyperbole began. First the larger states attacked legislatures in general. One delegate said public bodies would be "indifferent" to selecting qualified judges, since they "feel no personal responsibility," citing the Rhode Island legislature, which had recently dismissed judges who have the temerity to hold one of their acts invalid as an example of "the length to which a public body may carry wickedness." Another delegate lamented that "appointments by the legislature have generally resulted from . . . personal regard, or some other consideration . . . than proper qualifications."

Delegates from the smaller states came to the defense of legislative appointment. Roger Sherman, for example, argued that the Senate "was composed of men nearly equal to the Executive, and would of course have on the whole more wisdom." These delegates from smaller states also attacked the Executive as unfit to exercise the appointment power. They warned that he would use it to garner favors from the larger states upon whom he would depend for elections and that he could not possibly know enough to select qualified individuals.

Nathaniel Gorham of Massachusetts eventually suggested that the Convention adopt the method employed in his home state, where the executive appointed the judges with the advice and consent of the legislature. This suggestion, which sounds eminently familiar to our modern ears, fell on deaf ears at the Convention initially. Instead the delegates voted on a proposal by Madison that the judges be nominated by the executive, with the appointments becoming final unless two-thirds of the Senate disapproved. Madison mounted an elaborate defense of his proposal, but when the roll was taken, he had fallen short. Seizing the moment, the advocates of legislative appointment immediately moved that the Senate appoint the judges, and without further debate, that motioned passed.

Now that is where matters stood with appointment of federal judges by the Senate until the waning weeks of the Convention, when very mysteriously and without any debate whatsoever, a change was made. On August 31, a mere three weeks before the Convention adjourned, a committee with one member from each state was appointed to consider a variety of proposed changes to the draft constitution. Four days later this Committee of Eleven reported back a host of changes, among which was a section adopting Nathaniel Gorham's idea: The President was to appoint judges of the Supreme Court with the advice and consent of the Senate. Without debate, this provision was approved, leaving us with the second clause of Article II, section 2 which reads: "The President shall nominate, and by and with the Advise and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Counsels, Judges of the Supreme Court and all other Officers of the United States, whose Appointments are not herein provided for, and which shall be established by Law."

It is this clause which has been at the forefront of public attention during the Senate hearings on Judge Bork's nomination, and subsequently Judge Kennedy's. As I have just explained, however, the history of this clause offers little guidance as to its proper construction; the meaning of its crucial phrase, "Advise and Consent," was never discussed. Thus, as is true with so many other provisions of the Constitution, it has been left initially to the branch that must exercise a specified power or apply a particular provision to give content and meaning to the broad language employed by the framers. It is possible that we have recently witnessed a change in the scone of Senate inquiry pursuant to this clause. After all, it was not until relatively recently in our nation's history, that it was the practice of the Senate to ask any questions at all of the nominee.

Once the delegates had decided we should have federal judges and who should pick them, the final question confronting the framers with respect to the judiciary was the terms and conditions under which these new federal judges would serve. Today, we generally take for granted the willingness of the other branches of government to enforce the decision of the federal courts, even those with which they disagree.

Our judicial ancestors, however, did not always fare so well. In Georgia judges had been whipped for some of their rulings. In Massachusetts they had been beaten and terrorized. In Pennsylvania the treatment was less violent, but equally cruel. The Pennsylvania legislature landed on the rather simple strategy of enacting drastic cuts in judicial salaries, starving the judges out of office or into compliance.

The delegates at the Convention recognized that such actions did not produce an atmosphere conducive to impartial and detached decision-making. The Declaration of Independence noted similar behavior by the King of England, charging that the King "has made judges dependent on his Will alone, for the tenure of their offices, and for the amount and payment of their salaries." At the Convention the framers sought for ways to prevent such dependency by insulating judges from the potential wrath of the other branches. As with the other areas, here, too, the Virginia Plan provided the model. It called for judges "to hold their offices during good behavior" and provided that there be "no increase or diminution" of judicial salaries. This aspect of the Virginia Plan was first addressed in the Convention on July 18, when Governor Morris, in a move that has forever endeared him to the entire federal bench, proposed that the resolution be amended to permit increases in judicial salaries. Morris thought that increases could be authorized without creating any dependence of the judiciary on the legislative branch. Thankfully the rest of the delegates concurred.

But the remainder of the Virginia Plan's treatment of judges remained intact. The only attempt to change the formulation came late in the Convention when John Dickinson of Delaware suggested that judges should be removed "by the Executive on the application by the Senate and House of Representatives." Governor Morris, now quickly on his way to becoming the patron saint of the federal judiciary, immediately opposed the motion, arguing that "it was fundamentally wrong to subject judges to so arbitrary an authority." Edmund Randolph joined Morris, arguing that Dickinson's motion "weakened too much the independence of the judges."

Dickinson's proposal was defeated, with only one state voting in its favor, and the Convention immediately approved judicial tenure during good behavior by an overwhelming vote. This left us with the provision we have today, the second clause of section 1, Article III which reads: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

With this third issue resolved, the framers had finished with the judiciary. In the Federalist Papers, Hamilton described the end-product, writing that "The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and neither force nor Will but merely judgment; . . . the judiciary is beyond comparison the weakest of the three departments."

This was certainly true 200 years ago, and indeed, is in a sense equally true today. Judges must rely on private citizens to bring cases before them and upon other branches of government to enforce their decisions. But at the same time, as one of our greatest Chief Justices, John Marshall, said, "The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all." This fact, particularly in what seems to be an increasingly litigious society, gives the third branch considerably more influence than any of the delegates to the Constitutional Convention might have expected. My hope is that when we judges exercise this influence and power during the third centennial of our franchise that we also consistently exercise the sound judgment the framers were so confident that we possess.

Thank you.

Sandra Day O'Connor
Landon Lecture
February 16, 1988