Transcript: O'Connor on FOX

Supreme Court Justice Sandra Day O'Connor spoke with FOX News' James Rosen on May 22, 2003. Following is a transcript of that interview:

JAMES ROSEN: Justice O'Connor, thank you much for your time today. You are, as every civics student surely knows, the first woman to sit on the Supreme Court. As historic as that achievement is, I wonder if there aren't times when you're sick to death of hearing those words!

JUSTICE SANDRA DAY O'CONNOR: Well, it's a truism, in a way, that I was the first woman to serve on the Court. It took 191 years for that to happen after the Court was created. But it's been something that opens so many doors for other women that it really is a joy to know that it did happen --

ROSEN: But haven't there been times --

O'CONNOR: -- and that it had such an effect.

ROSEN: Haven't there been times you've said, "Please, don't say it!"

O'CONNOR: Exactly. And I've heard it. I've heard it. But, uh, anyway.

ROSEN: I imagine there are times when Neil Armstrong must want to be known as handy around the house, or something else!

O'CONNOR: Probably, instead of the first man on the moon.


O'CONNOR: Exactly.

ROSEN: The name of your book is "The Majesty of the Law: Reflections of a Supreme Court Justice." Yet the book is not really a memoir, per se.


ROSEN: And it's not a full-scale history of the Court. What led you to write this book, then, and what was your aim with it?

O'CONNOR: It is a compilation of some of the things that I've learned in almost twenty-three years that I've been here now. And I have had a chance to do a little research during that time, for a variety of reasons, including cases we've had to resolve, and I've learned a great deal more about the Court and its history and some of the people who've served on it, and some of the things I thought were rather interesting. And that perhaps it would make a good compilation of things that would be of, perhaps, interest to the non-lawyer reader.

ROSEN: There are some shocking statistics in the book about the ignorance of Americans, many Americans with respect to the Court and the Constitution.

O'CONNOR: Yes. It is sad. We had a bicentennial celebration a few years ago. In fact our former chief justice, Warren Burger, was the chairman of that bicentennial commission. And he used to tell me how he made such an effort to see to it that programs were available throughout the country to try to refresh people's understanding of the Constitution and the system that we have. And he was shocked at the time about the lack of knowledge that exists. The fact is that knowledge about the Constitution and the Court is not something that is handed down through the gene pool; every generation has to learn it. And I'm not sure the recent generations have done that good a job of learning about it.

ROSEN: To what do you attribute that?

O'CONNOR: Oh, it must be attributable, in fact, to the lack of a focus on it in school. I assume that if students have classes on the Constitution, and the forming of the nation, that we'd have better understanding, generally, than we do.

ROSEN: Who is the justice in history that you most admire? Either that you served with, or didnt get to serve with, or preceded you?

O'CONNOR: I think John Marshall has to go down in history as just a great American, um, figure, every bit as important to the country as the Framers of the Constitution were. We talk always about George Washington and about James Madison, who really developed many of the ideas for the Constitution, and Alexander Hamilton, and so on. Benjamin Franklin. But after the Constitution was written, John Marshall took up the cause of trying to get it ratified in Virginia. that was essential; if Virginia had not ratified it, I don't think it would have happened. And Patrick Henry, a famous Virginian, was passionate in his opposition. So John Marshall played a key role at that stage. And then he served as chief justice of this Court over thirty years. He was appointed by our second president, John Adams. And it was John Marshall who basically put the flesh and bones on our Constitution. We have an amazing Constitution. It's very brief, really, and it's lasted longer than any other Constitution around the world. I think one reason it has lasted so well is because it's so brief and so simple in its terms. And it was not clear from just reading it how broad the power of Congress was, under the Commerce Clause; it was certainly not expressed in the Constitution that the courts would have the power, in a case raising the issue, to determine that some law passed by Congress is unconstitutional. And yet John Marshall wrote an opinion in Marbury v. Madison so stating. And we just have so much to look to John Marshall for.

ROSEN: It's hard to overestimate his contribution.

O'CONNOR: Yes, that's right. And he also was a hero during the Revolution. He took up the cause and fought in the Revolution. He was with George Washington at Valley Forge, which had to be one of the grimmest times that America's revolutionary heroes had.

ROSEN: Pardon me....

ROSEN: I want to talk with you about some of the justices about whom you write in your book.

O'CONNOR: Mm-hmm.

ROSEN: Thurgood Marshall. You write very affectionately of him --


ROSEN: -- and the stories that he would tell, you --


ROSEN: --evocative stories of the segregation that he endured. I wonder of his great power of narrative ever lead you to change your vote on a case from your original instincts.

O'CONNOR: I don't know. I didn't look back to see if that was the case. Um, perhaps --

ROSEN: Do you recall that?

O'CONNOR: But I do remember how persuasive it could be to hear his stories and to realize the kind of experiences that he had through the years.

ROSEN: Like what?

O'CONNOR: Well, Thurgood Marshall grew up in Baltimore. And he got through high school, was a good student, and had some kind of college training and wanted to go to law school. The University of Maryland wouldn't admit him, because they didn't take people of the black race. And he went to Howard instead, which, in those days, was in an old house here in the District. And the library in those years was up in the attic of the old house. And he used to tell us how, when he was in law school, he would meet sometimes with other fellow students he had met, and they would sit in the library in the attic and talk about ways that perhaps they could use what they were learning in law school to help black people attain the things under the Constitution to which they thought they were entitled. And how they might how achieve that after graduation. and, as you probably know, Thurgood Marshall went to work for the NAACP Legal Defense Fund and the Defense Fund would get representation for people in cases where it was thought that a victory in court would make a real difference. for African-Americans. And he went all over the country handling such cases. And those experiences were incredible. He would go to a town in the South, perhaps, and he couldn't go in the front door of a restaurant to get a meal. But he would be from out of town and he would need food. And he's have to go to the back door of a restaurant and arrange to buy a sandwich out of the back door. He would be told by law enforcement officials in the town that he better be out of town on the next train. And he just had this unbelievable set of experiences, although here he was, a practicing lawyer, trying to represent people in court.

ROSEN: Do you think the two of you shared a special bond because he was the first African-American on the Court and you were the first woman?

O'CONNOR: I think, perhaps, a little spark [was] there because of that. That's possible.

ROSEN: You also write very affectionately in your book about Chief Justice Burger.


ROSEN: Yet your book makes it seem almost as though Warren Burger will be remembered more for his efforts at streamlining court administration than he will be for his rulings from the bench. Is that true?

O'CONNOR: Oh, that's hard to say. There are, there are some rulings from the bench that were terribly important. One was the very first case in which the Court decided to apply a little stricter test to laws that discriminated on the basis of gender. And that led to the Court's eventual development of a kind of level of stricter scrutiny for gender-based discrimination. And he authored that opinion for the Court. So it's one with which I certainly am familiar.

ROSEN: Ironically, however, the Nixon tapes show that Chief Justice Burger was not exactly thrilled with the idea of having a woman on the Court, because, as you know, President Nixon toyed with that idea.

O'CONNOR: I think, by the time I came along, that Chief Justice Burger was quite satisfied to have a woman, and I think he rather liked me. I had already gotten to know him and I wouldn't be surprised to discover somehow someday that he might have put in a good word for me somewhere along the line.

ROSEN: We are now seeing filibusters and very great contention over the nominees for judges to the circuit courts, not even for the Supreme Court.


ROSEN: In some cases for some nominees who, by virtue of their credentials, seem to be very well qualified to serve on the bench. Why do you think we're seeing this? What's behind it?

O'CONNOR: I think we're seeing it in part because the Senate is very closely divided in its membership between Republicans and Democrats. And we've seen over a period of years that when the president is of one political party, and the Senate is in the hands of the other political party, that nominations can be difficult to get confirmed. And we don't have that now, but we have a very closely divided Senate and we're seeing some fallout as a result from that fact.

ROSEN: Do you think politics is hurting the judiciary at this time?

O'CONNOR: Oh, I don't think so. I mean, once a judge is confirmed in an office, the federal judge is going to be serving in that capacity much longer than the political figures who had anything to do with that nomination. The Constitution provides a good deal of independence for federal judges. And -- but there is a political component at the selection stage, because a president is the one who makes the nomination and can use any criteria the president seeks to use. And the Constitution gives to the Senate the role of advice [sic] and consent. that isn't spelled out in the Constitution, and the role that the Senate wants that to include is really up to the Senate itself.

ROSEN: In withholding consent from a nominee, should lawmakers be able to cite the judicial philosophy or the political philosophy of the nominee?

O'CONNOR: The Constitution doesn't spell out any limitations on the Senates role of advice [sic] and consent. I know our president, George Washington, our most popular president ever, made a nomination for chief justice after John Jay had stepped down to go be governor of New York; it had to be filled. And that nomination was not confirmed by the Senate, even for a very popular president. So I guess the precedent was set early on for occasional disagreements between the president and the Senate.

ROSEN: Do you think, all told, that we are in a more fractious time right now, where the subject of judicial nominations is concerned?

O'CONNOR: Well, I think it's closely divided on many issues, not just that one. Yes.

ROSEN: One other historical episode I wanted to ask you about, about which you write in your book. You seem to write almost sympathetically, more sympathetically than most scholars do, about Franklin Roosevelt's attempt to quote-unquote pack the Supreme Court via legislation. Um --

O'CONNOR: Oh, I'm sorry you read it as being sympathetic. Had I been around, I would not have favored it. I think it was fortunate for the Court that it didn't pass.

ROSEN: How great a danger did Franklin Roosevelt pose to the Supreme Court in that episode?

O'CONNOR: It came close for a while, I think, to passage, and I don't think that would have served the nation or the Court very well. Nine is not a bad number to have on the Court. It's an uneven number, and a number that provides some diversity of viewpoint, which healthy. But fifteen would make it much harder for the Court to reach a consensus or to work, and that's how many there would have been had the Roosevelt plan succeeded.

ROSEN: Do you think his attempt displayed some contempt for the Court as an institution, in that sense?

O'CONNOR: Oh, I don't think it was contempt. I think he was unhappy that the Supreme Court had declared unconstitutional various legislative enactments that the president had sought to, as a means, he thought, of getting the nation out of the Depression. I, I think that one of the things that is a surprise to most people is that the Constitution does not fix the number of justices on the Court.

ROSEN: And it's fluctuated.

O'CONNOR: That's up to Congress. And it has fluctuated often. And in the first century of the Court's existence, it seemed to change fairly often. I include a little poem in the book that was written at the time of the Roosevelt Court-packing proposal. And it's pretty good. It says [reading]:

"Congress decided to fix

The number of justices at six.

Congress decided on a change to five,

But the six remained very much alive.

Six high judges, supreme as heaven,

And Jefferson added number seven.

Seven high judges, all on a line,

Two more added and that made nine.

Nine high judges were sitting

When Lincoln made them an even ten.

Ten high judges, very sedate,

When Congress got through, there were only eight.

Eight high judges who wouldn't resign,

President Grant brought the figure back to nine.

Would a justice feel like a packed sardine

If the number were raised to, say, fifteen?"

And that was the Roosevelt years. But the fact is that Congress, throughout that first half of the Court's existence, if the Congress had in office a president that the Congress supported, they'd be inclined to increase the number of justices. And if they were of different political persuasions, Congress would try to reduce the number, to make sure the president didn't have an appointment.

ROSEN: It had a good beat and you could dance to it.

O'CONNOR: I guess so!

ROSEN: I give it an eighty-five!

O'CONNOR: [Laughs]

ROSEN: I want to move onto the workings of the Court, the workings of the Court. You write in your book, "The business of the Court is to resolve controversies."

O'CONNOR: Right.

ROSEN: Is it always successful in that endeavor?

O'CONNOR: No, of course not.

ROSEN: Where hasn't it been?

O'CONNOR: Well, sometimes, I think the Court had reached a wrong conclusion, and then the nation has had to live with that wrong conclusion for a long time. Look at segregated schools that we had in this country for a great many years, and segregated public facilities, generally. And with an early decision, called Plessy v. Ferguson, the Court said that the Constitution was not violated if the separate public facilities were equal to those provided to the white race. So those available to the black race, if they were equal, then that was constitutional. And after living with that for a good many years, in the 1950s, the Court realized that indeed, that was faulty doctrine, and overturned that old Plessy v. Ferguson case. Now Thurgood Marshall was one of the lawyers arguing in Brown v. Board of Education.

ROSEN: In that case -- Brown v. Board of Ed helped overturn Plessy v. Ferguson.


ROSEN: And in doing that, in agreeing with the arguments that Thurgood Marshall and others made --

O'CONNOR: Right.

ROSEN: -- the Supreme Court temporarily cast aside the principle of stare decisis, which means --


ROSEN: -- roughly that precedent rules.

O'CONNOR: Uh-huh. It did.

ROSEN: Are there some cases or kinds of cases in which the justices are able to tell that stare decisis should not matter as much as it should in other kinds of cases?

O'CONNOR: Well, yes. Um -- actually, when the Court decides an issue of constitutional law, that decision, that judgment of the Court, and the resulting interpretation of the Constitution, is not something that Congress can change by just passing a law. And the Constitution has a very cumbersome process for amending the Constitution. The Constitution could, in theory, be amended, to overcome some doctrine of interpretation by the Court, but it's just so hard to do. Three-fourths of the states have to consent; it has to be passed first by the Congress; referred to the States. So through the years, it is the Court itself that has been more amenable to deciding "We were wrong at that earlier date, and we made a mistake, and we'd like to change our minds." And that's open. But if the Court had interpreted a law passed by Congress in a particular case and said, "We think what Congress wrote means thus-and-so," the Court is not apt to change that opinion in some later case. And the reason is because Congress, the present Congress, is perfectly capable of re-writing the law, if Congress thinks it should be re-written.

ROSEN: So stare decisis applies most when the Congress is least [sic] able to act on its own.

O'CONNOR: I think, in practice, that's how it's worked out.

ROSEN: As you probably know, Justice Scalia prides himself on having a very highly evolved theory about how to go about a judge's job, or a justice's job, of statutory interpretation, how to decide what a law actually means. He calls it "textualism," as you know. As he describes it, it means that the text of the law itself should prevail in any attempt to interpret it or define it. Do you have any such theory or model about how you go about interpreting laws?

O'CONNOR: I think all the members of the Court are in agreement that the first place we look when we're interpreting the law is at the words of the statute itself. If we can find the answer there, we do. We're all in agreement on that. Some of my colleagues prefer not to look at legislative history, at committee reports, for example. Others on the Court are willing at times to look at committee reports, to interpret some ambiguous statute. The Court is not of one mind on that issue.

ROSEN: What is your own particular approach?

O'CONNOR: I have, on occasion, looked at some legislative history. If the language will answer it, I don't need to do that.

ROSEN: You seemed, in your book at one point, to be poking a little fun at so-called "original meaning" scholars, or people who think that we should go back to the founders in all cases for their intent, when you wrote in your book that, quote, "no amount of study of James Madison's private notes" will sometimes help decide given cases.

O'CONNOR: Well, I wrote that in the context of looking at some of the Fourth Amendment cases we get here, that the Fourth Amendment prohibits unreasonable searches and seizures. That amendment was written at a time before we had anything like DNA testing, or breathalyzers, or thermal energy devices to measure heat, or night vision glasses, things of that kind. They didn't exist. And when we're asked today to answer the question whether any of those measures are in violation of the fourth Amendment, it's no use looking at James Madison's notes, because those things weren't in effect at that time. So we have to rely on our present understanding of the rationale of the Fourth Amendment in trying to answer that very difficult question: "What's reasonable?"

ROSEN: That seems very reasonable to say, that the Framers could not have anticipated DNA technology --

O'CONNOR: No, no, no.

ROSEN: -- or thermal vision goggles [sic], et cetera. But do your, are all of your colleagues so easily persuaded by that line of thought?

O'CONNOR: Oh, I don't know! We've had dis --

ROSEN: You would know better than me!

O'CONNOR: Well, yes. But we've had to address a variety of these questions and we've dealt with them and done our best to determine what's reasonable and what isn't within the meaning of the Fourth Amendment.

ROSEN: Your brother once remarked that the abortion cases in particular have been, and I quote, "sheer agony" for you, because of your position on the Court as the first woman on the Court. What do you think he meant?

O'CONNOR: Oh, I think he knew in general that occasionally the cases reviewed by this Court raise issues that are very divisive issues for the public, generally, and certainly the abortion issue has been such an issue. The nation is very divided on that question. And it carries over here in the sense that there's a great deal of mail generated by that. I don't consider, of course, letters written to me by people about a particular case, saying I should do this or that. But it just generates these quantities of mail that have to be dealt with in some fashion. I mean, you have to sort out that letter from a bill, for example. And it becomes very stressful. And then I think probably because I was the only woman on the Court for some of those years, with some of the cases involving abortion, I think every woman in America, probably, wrote me a letter to tell me her views. Some of them, perhaps, more than once. And it just generated a tremendous amount of correspondence.

ROSEN: And pressure.

O'CONNOR: Well, I don't know that I'd call it "pressure." I mean, I'm not bound [by] and I don't consider what private citizens are trying to tell me what to do [sic]. I mean, that isn't relevant to my decision. But I'm very aware in some of these cases that feelings run deep.

ROSEN: Thirty years after Brown v. Board of Ed would take us to 1984. By 1984, the decision of the Court to desegregate public school systems had achieved complete respect, and unanimity in respect for that decision. And yet here we are thirty years after Roe v. Wade, and it doesn't feel like it has. Would you agree with that assessment?

O'CONNOR: Yes, I think the nation is still very divided.

ROSEN: What accounts for the difference in acceptance of Brown v. Board of Ed versus the failure to achieve complete acceptance of something like Roe v. Wade, do you think?

O'CONNOR: I can't answer that. But the feelings are still very divided in the country, as I understand it.

ROSEN: Mm-hmm. I think a popular expectation was: "Well, Sandra Day O'Connor is the only member of the Court" -- for those certain, given number of years -- "who has been pregnant, and who has given birth to a child." And that, therefore, somehow those cases would weigh more heavily on you than they would the other justices. Was that a misperception, do you think?

O'CONNOR: Oh, I don't know! Luckily, we now have another woman justice on the Court, which is a very good thing.

ROSEN: Obviously, the way you have approached your job has brought you great respect for your diligence, your work ethic, your intellect. But it was not necessarily a given that whoever would be the first female justice appointed would necessarily become a respected justice.

O'CONNOR: No, it wasn't.

ROSEN: We could have had somebody who might not have turned out this way. Would that still have been, if that had been the case, a net-positive for the American people, just to get a female justice on the Court?

O'CONNOR: I don't know. I, I have always thought that while it's wonderful to be the first to do something, you don't want to be the last. And I was very concerned when I accepted President Reagan's request to have the nomination made. I was concerned myself about whether I could do the job well enough to say yes, because my experience had not been as a federal court judge. I was not familiar with the matters that typically come before the Court. And I wasn't certain that I'd be up to the job.

ROSEN: We're hearing a lot now about the prospect for there to be a Hispanic nominee to the Supreme Court. That's a growing, ascendant political voting bloc. Do you think it would be good for the nation -- in the same way it was good for the nation to have a female justice -- for there to be someday a Hispanic justice?

O'CONNOR: That's not for me to say. But I think, in the case of having a woman member, or a member of the black race on the Court, for example, has been reassuring to the public, generally, in the country, that positions of authority in our government have among them a broad spectrum of the population at large.

ROSEN: Well, so far --

O'CONNOR: I think that has, it has reassured the public, to some extent.

ROSEN: So far as we know, there has yet to be appointed to the Supreme Court a gay or lesbian individual. Would that be something that would be beneficial or reassuring to the country, do you think?

O'CONNOR: I don't know. It would depend on public opinion, and I'm not a poll-taker.

ROSEN: [Laughs] Me, neither. You once were quoted as saying: "I think the important fact about my appointment is not that I will decide cases as a woman, but that I am a woman who will get to decide cases." What did you mean by that?

O'CONNOR: Just what I was saying. That, as a woman on the Court, I would be deciding cases and perhaps that's a good thing from the public perspective, to have women included here.

ROSEN: How is that different from deciding cases, quote-unquote, "as a woman?"

O'CONNOR: Well, that suggests that there's a woman's point of view in the resolution of each case and that each case, and that I would represent some particular point of view. I don't think that's generally the case. And I've talked about this, of course, with my colleague, Justice Ginsburg. And it's very hard to say that a woman is going to make a decision that at the end of the day is different from that a man would make. Because I tend to agree with the woman judge from Minnesota who some time ago said: "At the end of the day, a wise old woman and wise old man will reach the same decision."

ROSEN: There was, for many years on the Court, quite openly termed as such, a "Jewish seat" on the Court. There now appears to be a "black seat" on the Court. Do you think the country would suffer if, for a definite or small period of time, the Court would go back to an all-male membership? Would that make the country suffer? Or should we always have a woman on the Court from here on out, do you think?

O'CONNOR: I would be surprised if we did -- if we did not have a woman on the Court. It would surprise me.

ROSEN: So, in effect, there is now -- whoever's it may be -- a "female seat" on the Supreme Court, to stay?

O'CONNOR: I can't say that! I don't know. It's up to the president; it's up to the Senate. But I would be a little surprised, personally, if in the future we didn't have one or more women on the Court.

ROSEN: You write in your book, quote: "We will have a woman president." "Will" you put in italics.


ROSEN: Do you think that individual is already known to Americans?

O'CONNOR: I have no idea.

ROSEN: How far out are we from that prospect?

O'CONNOR: I don't know that, either.

ROSEN: What does your gut tell you?

O'CONNOR: No! I -- it doesn't.

ROSEN: [Laughs]

O'CONNOR: Just I'm sure that someday, we will.

ROSEN: You told a St. Louis audience in 1990 that we have a long way to go before we achieve equality between -- that women achieve an equal footing with men in this country.

O'CONNOR: Mm-hmm.

ROSEN: Are we there yet?

O'CONNOR: Oh, not entirely.

ROSEN: What do we have to do? where do we have to go?

O'CONNOR: We have to continue on the path we've been on, which has been very helpful in my lifetime. When I look back at what has happened with regard to women in my lifetime, in opening up opportunities, it's nothing short of a revolution. When I went to law school, matriculating in the 1940s, 1% of law students were women. And last year, over 50% nationwide were women. When I graduated from law school, law firms were not hiring women lawyers. They didn't think they ever would.

ROSEN: You were third in your class.

O'CONNOR: Well, I was high in my class. I had good grades.

ROSEN: And what were you told?

O'CONNOR: Its' -- that, "We have never hired a woman as a lawyer, and we don't see the day that we will." So that has just dramatically changed. Law firms are totally open today to hiring women lawyers, and it isn't just the legal profession. You can look at medicine, you can look at engineering, you can look at the spectrum of opportunities, and it's changed. Thankfully.

ROSEN: Even boxing, now!

O'CONNOR: Is that right? I don't know! I don't follow that!

ROSEN: Yes, Muhammad Ali's daughter is boxing!

O'CONNOR: Oh, all right.

ROSEN: I wonder if you recall your meeting with President Reagan prior to his announcement of you as a nominee. Had you met him before? did you have a relationship with Ronald Reagan?

O'CONNOR: I had met him once or twice in Arizona at different functions, but I had never had a one-on-one visit. I didn't really know him. But when his attorney general, William French Smith, telephoned me, and asked me to come back to Washington for a visit if I could. On that visit, I was taken to the Oval Office and met President Reagan.

ROSEN: What do you remember about that visit?

O'CONNOR: Well, it was just electrifying to find myself in the Oval Office, talking to the president of the United States about a position on the Supreme Court of the United States. That's nothing I ever expected to have happen.

ROSEN: I know that you two talked about your mutual love of horseback riding on that occasion. Did he seem like he was pressing you for answers as to how you might rule on cases or anything like that?

O'CONNOR: No, he didn't press me for an answer on what I would do, but we did talk about some substantive issues, in general terms.

ROSEN: In retrospect, could someone wishing to divine how you would rule as a justice on the Supreme Court on various kinds of cases have looked to your experience as an Arizona state legislator for clues?

O'CONNOR: Well, I think people probably did do just that. And I also had served as a judge in Arizona. And I have no doubt that my work as a judge was reviewed as well for clues. The difficulty is that state courts don't decide the range of issues that we find at this Court, and that come, generally, to the federal courts. So I think it's very hard to know. In fact, I myself would have been unable to answer how I would resolve the many, many issues that come before this Court. There's no way to know that.

ROSEN: Do you see a continuum between your work on the one court, in Arizona, and on the Supreme Court, in terms of -- is there a consistency in how you approached cases or ruled in cases, do you think?

O'CONNOR: Well, in broad terms, yes. I mean, the role of a judge is to take the record as it comes to you. At the appellate level, we're not deciding fact questions very often. We're accepting the record as it comes to us, and we're deciding some abstract principle of law. And if it's a statute we're reviewing, we've already mentioned how you will look initially at the text of the statute. You'll look at whatever you think you should to determine what Congress meant. If it's the Constitution, we're going to look at the Constitution, and at over 200 years of precedents out there dealing with the interpretation of that particular provision.

ROSEN: I know you feel that your reputation as a "swing vote" on the Supreme Court is something of a figment of legal scholars' or writers' imagination, or perhaps a gross exaggeration of some kind. I've seen you try to pooh-pooh that notion elsewhere, that you're a "swing vote" on the Supreme Court.

O'CONNOR: Well, it's the notion that we have nine members, and sometimes, in fact, in a majority of cases, there's some division on the Court. It's not unanimous, except in about a third of the cases or so. And in the cases in which we are not unanimous, you will see in different cases different groups of justices that make up the majority and different groups that make up the minority. So it's not unusual in any way that you're going to find different groups here on one case than you find in the next case.

ROSEN: How different are they, though? They tend to be the same constellations, don't they?

O'CONNOR: Not necessarily at all.

ROSEN: Isn't it sort of a matter of statistical fact that, that you and Justice Kennedy seem to be the deciding vote in a lot of different kinds of cases, five to four, often?

O'CONNOR: I don't add up the numbers.

ROSEN: One writer has written about you that: "We are all living in Sandra Day O'Connor's America. Take almost any of the divisive issues in American life, and Justice O'Connor either has decided it, or is about to decide it in our behalf." That was Jeffrey Rosen, no relation.

O'CONNOR: Right.

ROSEN: Do you take issue with that characterization?

O'CONNOR: I do. Yes, I do.

ROSEN: On what grounds?

O'CONNOR: Well, I have one of nine votes here. Sometimes I'm in the majority; sometimes I'm in the dissent. And I don't se my role as deciding all these things, or even purporting to decide things in the fashion described in that article.

ROSEN: You also write in your book, "Every one of my colleagues has been very thoughtful and considerate. There have been times with some previous Courts where some members did not get along, and when some animosity persisted among certain justices." Which past justices harbored animosity for each other?

O'CONNOR: Oh, we had a time in the past when some of them did. We hear examples of justices refusing to stay in the same room with another justice, and so on. It must have been quite unpleasant. And I'm very grateful that in the years that I've been here, we've had a collegial body on this Court.

ROSEN: Do you feel that that has always been the case in all the --

O'CONNOR: Since I've been here?

ROSEN: Yeah.

O'CONNOR: Yes. Oh, yeah. Right.

ROSEN: 'Cause there have been -- I won't name names -- but there have been reports that you were offended in one case by another justice's language in a --

O'CONNOR: Well, anybody can be unhappy in a particular case with a particular choice of language. That doesn't carry over into the personal relationships around here. Nor should it. I mean, I might disagree with a colleague here on both the merits and the outcome of [a] case, or event he particular choice of words. But that doesn't mean that I have taken offense at a personal level.

ROSEN: Okay. There was one Supreme Court case for which you were present. Again, of course, I would never ask you about the substance or the merits of the case. But it's so unique and it's so important to Americans that I wonder if you could at least assure them that the processes functioned normally during this case. That is to say, the case came in, it was reviewed and decided, and the case--the ruling went out in normal fashion. That's Bush v. Gore. Was that a normal case for you guys, in terms of--

O'CONNOR: What was not normal was the short time pressure. We typically have a great deal more time to get briefs from the parties and to hear it and to resolve it ourselves. And in that instance there were time deadlines established by federal law that superimposed deadlines to which we're not normally accustomed. And it's harder for the Court, I think, to operate under a short time schedule.

ROSEN: But the nature of the case, the certainty everyone had with it, that with its decision, the Supreme Court would be, in effect, deciding a presidential contest--that didn't affect anybody in the same way, for example, that the time pressure did?

O'CONNOR: Well, I'm very aware of the public interest, of course! Good heavens, yes!

ROSEN: But it didn't--

O'CONNOR: We're not, we're not unaware of the closely divided public out there.

ROSEN: But the processes remained intact, the way the justices approach cases?

O'CONNOR: We heard arguments, we received written briefs, which were actually very well done, even though produced on a very short time schedule, and I think we did the best we could under a short time schedule.

ROSEN: Do you think an atheist could be reasonably reassured that the Supreme Court - whoever its members are - would be impartial in deciding cases where an atheist’s claims might be at issue when, in fact, every one of the proceedings of this Court begins with the invocation: "God bless this honourable Court"?

O’CONNOR: Well, I can’t answer that, either. But there are evidences of a recitation, or a reference to the deity, in the Court’s opening processes, on some of the coins we have in our handbags or pockets; and in other manifestations in our country.

ROSEN: Doesn’t that betray some partiality from the get-go?

O’CONNOR: Well, I’m not going to try to answer that question for you.

ROSEN: [Laughter] Okay. I’m plucky! I get credit for pluck, yes?

O’CONNOR: Mm-hmm. Mm-hmm.

ROSEN: Have you ever kept a diary?


ROSEN: You’ve never written down anything about your various experiences privately, for yourself?


ROSEN: Do you plan to write any other books?

O’CONNOR: I don’t know.

ROSEN: You were -

O’CONNOR: I’m not doing anything now.

ROSEN: When you were in law school, where you met your future husband -

O’CONNOR: Mm-hmm.

ROSEN: -- who you’ve been married, to whom you’ve been married more than fifty years -


ROSEN: First of all, let me ask you what is the secret to such a long-lasting marriage?

O’CONNOR: Well, he’s a pretty special man. He was very, very understanding all through the years. He was willing to have a wife who wanted to work, and had a great sense of humor. We had wonderful times along the way. We had - we both had studied law; it was easy to converse. We spoke the same language, so to speak. And we had many mutual interests in outside activities.

ROSEN: I once asked a couple who had been married fifty years what they thought the secret to a successful, long-lasting marriage like theirs was, and they said: "Don’t open each other’s mail!"

O’CONNOR: [Laughs heartily] Ah, dear.

ROSEN: Would you pronounce on that, or --

O’CONNOR: [Laughs again]

ROSEN: -- you’ll let that be?

O’CONNOR: Well, that might be some ingredient, but I wouldn’t have said that up front as the most important. [Laughs]

ROSEN: When you were in law school, you knew your future colleague on the Supreme Court, William Rehnquist.


ROSEN: You dated William Rehnquist.

O’CONNOR: Oh, we went to a few movies.

ROSEN: Mm-hmm.

O’CONNOR: Mm-hmm.

ROSEN: And on those occasions, did he show judicial restraint or was he more of an activist?

O’CONNOR: Oh, good heavens!

ROSEN: [Laughs]

O’CONNOR: He was a brilliant, entertaining young man.

ROSEN: Do you have a favorite movie?

O’CONNOR: Oh! [Looks up, pauses] Um -- I like movies, generally. Somehow, I look back long ago. I’ve, I have never seen it again, but I remember as a youngster being allowed by my mother - and I’ve forgotten how old I was - to go see, uh - what was the Southern movie?

ROSEN: "Gone With the Wind"?

O’CONNOR: "Gone With the Wind"! And that made a dramatic impression, because in those years, I didn’t go to movies very often. And that was very dramatic! So I always look back and think, "That was really something!" But there, there have been lots of great movies.

ROSEN: Any that make you cry?

O’CONNOR: Oh, yes, sure!

ROSEN: Name one.

O’CONNOR: Oh, I don’t know! I’d have to sit down and think! But absolutely.

ROSEN: Mm-hmm. What TV programs do you watch?

O’CONNOR: Not much. Very few. I like -- when I have an opportunity, which is now and then -- I like to watch "The NewsHour with Jim Lehrer." They get, on that show, reports from such a wide array of people talking about current issues, and I think it’s kind of nice. And I like to watch a few golf matches on television. I happen to like golf, and I get a kick out of watching some of ‘em.

ROSEN: Justice O’Connor, thank you very much for your time today.