A Conversation with Justices Souter and O'Connor

DAVID MCKEAN: Good evening. I’m David McKean, the CEO of the John F. Kennedy Presidential Library Foundation. On behalf of my Foundation colleagues and the Library Director, Tom Putnam, I want to thank all of you for coming this evening. We count on your support, and if you are not already, I encourage you to become a member of the Library. Please visit our Web site, JFKlibrary.org, for more information.

I would also like to express particular thanks to the friends and institutions that make these Forums possible. Bank of America, which is our lead sponsor of the Kennedy Library Forum series, Boston Capital, The Lowell Institute and the Boston Foundation, along with our media sponsors, The Boston Globe, WBUR and NECN. This Forum will be broadcast on WBUR, NECN, the WGBH Forum Network and CSPAN.

We are honored to have with us tonight retired Supreme Court Justices Sandra Day O’Connor and David Souter. They are here to discuss their shared passion, the importance of civic education. Justice David Souter recalls that when he was a boy he learned the lessons of democracy and the functions of the three branches of government at New England town meetings. He has called those meetings the most radical exercise of American democracy that you can find. It didn’t matter if someone were rich or poor, young or old, sensible or foolish, these meetings were governed by fundamental fairness. Today, when two-thirds of Americans can’t name the three branches of government, a rebirth of civic education is needed to insure, as Justice Souter has said, that the nation has judges who stand up for individual rights against the popular will.

Justice O’Connor is even blunter. [Laughter] When only one in seven Americans knows that John Roberts is Chief Justice of the Supreme Court but two–thirds can name at least one judge on American Idol [Laughter], it’s time to re-educate the American public.

Sandra Day O’Connor was born in El Paso, Texas and spent her early childhood on her family’s cattle ranch in Arizona. She received her BA and law degree from Stanford University before settling in Phoenix, Arizona with her husband. She served as an Arizona Assistant Attorney

General, and in 1974 ran successfully for trial judge, a position she held until she was appointed to the Arizona Court of Appeals. She was nominated to the Supreme Court in 1981 by President Ronald Reagan and confirmed by the US Senate, 99 to zero, making her the first female in our nation’s history to serve on the highest court. [Applause]

Justice O’Connor retired from the Court in 2005 and has been known to refer to herself as just an unemployed cowgirl. But, as our moderator recently wrote in The New York Times, Justice O’Connor basically lives in airplanes, traveling the country in support of her causes. Let me read you one newspaper article that illustrates that commitment. In September Justice O’Connor visited Wrigley Field in Chicago to attend a Cubs game. Wearing a royal blue Cubs jacket, she delivered the game ball to the umpires on the field and then visited the broadcast booth where she delivered the following commentary: ―I never thought I would see the day when we stopped teaching civics and government. Now, it could be a little boring how they were teaching it, but nonetheless it is an important function of the schools.‖ And then Justice O’Connor suddenly interrupted herself, ―Oh, big hit out there.‖ [Laughter] You have to love a Supreme Court Justice who jumps in to give the play by play at a Cubs game.

David Souter was born in Melrose, Massachusetts. He received his BA and law degree from Harvard University and was a Rhodes Scholar at Magdalene College, Oxford before settling in New Hampshire, where he served as Attorney General and on the State Supreme Court. He was nominated to the US Supreme Court in 1990 by President George H. W. Bush.

Our moderator has also written about Justice Souter. Just after he announced his retirement in 2009, she called him, ―Perfectly suited to his job. His polite, persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the cases relevant to it. Far from being out of touch with the modern world, he has simply refused to surrender to it control over aspects of his own life that give him deep contentment: hiking, sailing, time with old friends, reading history.‖

These days Justice Souter is doing some of the things that he loves. But he is also, very occasionally speaking out about some important issues. At a commencement speech at Harvard University this past May, Justice Souter spoke out about the different modes of constitutional interpretation. Washington Post columnist E. J. Dionne called the speech ―remarkable, one which should become the philosophical shot heard round the country.‖

Our moderator tonight, Linda Greenhouse, who I’ve already quoted liberally, is one of the foremost authorities on the Supreme Court. Reporting on the Court for the New York Times from 1978 to 1998, she won the Pulitzer Prize in 1988. She now teaches at Yale Law School. In a recent New York Times Op Ed about the three former justices -- John Paul Stevens, Sandra Day O’Connor and David Souter -- she noted ―their shared capacity for blunt talk.‖ And of tonight’s speakers she writes, ―Freed from the strictures of incumbency and the need to garner concurring votes, each is in a public position to help the public understand a bit more about how a Supreme Court Justice thinks as well as about the Supreme Court itself, its processes and its challenges.‖

With that in mind, please join me in welcoming Justice Sandra Day O’Connor, Justice David Souter and our moderator, Linda Greenhouse. [Applause]

LINDA GREENHOUSE: Well, thank you. It’s a personal thrill to be here, really, here in the Kennedy Library on the 50th anniversary of his election. I was a young teenager at that time, and I have to say that he did inspire my own interest in public affairs and the public life of a country. I remember my friends and I in school hanging on every development of the 1960 campaign and the start-up of the new administration, which is kind of a deliberate segue into our topic tonight -- the civics education deficit in the country’s schools.

It just makes me wonder whether the same energy and enthusiasm with which I and my 12 and 13 year old friends back in 1960 approached what was going on in the country based on some knowledge of what we had been taught in public school, whether that still exists today. So I’ll just start off by asking both of you, since you’ve made this really a project in this phase of your professional careers, what motivated you to choose this topic as something you are devoting yourself to.

JUSTICE SANDRA DAY O’CONNOR: We started public schools in this country in the early 1800s on the basis of arguments that we had an obligation to teach our young people how our government works, so they could be part of making it work in the future. That was the whole idea. That was the justification for getting public schools in this country. When I went to school -- there weren’t any out on the Lazy D ranch -- I was packed off to my grandmother in El Paso and went to school there. I had a lot of civics but it was largely Texas. I got so tired of Stephen F. Austin, I never wanted to hear another word about him. But I mean it just was endless.

LINDA GREENHOUSE:  So ―Remember the Alamo‖ doesn’t have much.

JUSTICE SANDRA DAY O’CONNOR: No. No. I wasn’t into San Antonio. We were in El Paso. [Laughter] Anyway, we had a lot of civics in my day. I guess I thought that was what schools were supposed to do, and I was stunned to learn that half the states no longer make civics and government a requirement for high school any longer. We had a lot of concern about what young people were learning.

I can understand why some of it was getting boring. The leading textbook for civics was 790 pages long. Now I’m sorry. You can’t give that to some young person and expect them to just read it and absorb it. It doesn’t happen. So I thought we needed a little help, and that’s how I got involved.

LINDA GREENHOUSE: And you recruited your colleague?

JUSTICE DAVID SOUTER: Well, yes. She got me into this. [Laughter] Really, she did. I didn’t have any particular sense of what was going on in civics teaching in the United States. I remembered mine. But five or six years ago, Justice O’Connor and Justice Breyer convened a conference in Washington to address the threats to judicial independence, which seemed to be snowballing at the time, and the most significant thing and the most shocking thing I think that I learned the first day that we were there was the statistic that you’ve already heard this evening: that depending on who does the measuring, only about two-thirds, at best 60% of the people in the United States, can name the three branches of government. They are simply unaware of a tripartite scheme of government and separation of powers.

Well, the implication of that for judicial independence is, if one does not know about three branches of government and the distinctive obligations of each branch, then talking about judicial independence makes absolutely no sense whatever. Independence, why? Independence from what? Independence for what reason? You get absolutely nowhere because there is not a common basis of knowledge for discourse. And when I and others left that meeting, we realized that, yes, we had a lot to worry about on a tax on judicial independence but we had a broader problem to worry about in the United States. I have only become more convinced that it is a serious problem and not a kind of Chicken Little problem or a reflection of the nostalgia of dinosaurs for the way government was taught when we were kids. But my awakening started at that conference on judicial independence.

JUSTICE SANDRA DAY O’CONNOR: Now, there is one other part of the story that was disturbing, I thought. American high school students were tested along with those of 20 other nations a few years ago, and they came in near the bottom of the 20 nations in scores on math and science. And it was so frightening that our then-President and Congress said, ―We have to do something.‖ Well, you know what that means, money, Federal money. So they put together Federal money to give to schools based on good test scores in the schools for math and science, and they tossed in reading.

LINDA GREENHOUSE: You are talking about the No Child Left Behind Act.

JUSTICE SANDRA DAY O’CONNOR: No Child Left Behind. You’ve heard of that. That was the program, and no doubt a good thing. But the problem was that because none of the Federal money was given to teach civics or American history or government, the schools started dropping it. Half the states today no longer make civics and government a requirement for high school. Only three states in the United States require it for middle school. I mean, we’re in bad shape and we need to do something.

LINDA GREENHOUSE: Well, you are doing something.

JUSTICE SANDRA DAY O’CONNOR: Yes, we are.

JUSTICE DAVID SOUTER: But the relevance of No Child Left Behind today, I think, is indicated by what Justice O’Connor said. We’ve got a kind of testing culture in America’s schools, which is all to the good on subjects of science reading and math, which are being tested. The effectiveness I don't know but the objective is obviously okay. The trouble is that, as everybody says, schools have a tendency to teach to the test, and if finances or educational ratings or other sorts of measures of decency and excellence are going to be tied to the test on these three subjects, the natural human tendency is that everything else is going to get short shrift.

We have to be careful not to suggest that No Child Left Behind is the source of the problem because American schools started dropping civics, as we remember it, back around 1970. There was a series of conclusions drawn by educators to the effect that teaching civics really had no effect, in fact, on what people, what young adult people ended up knowing about their government. This seems counterintuitive but that was the theory and that’s why civics started getting dropped.

The problem with No Child Left Behind, for those who want to revive or revitalize civic education, is you’ve got to find some room in the school day to fit it in. Your competitor is, in effect, No Child Left Behind in the subjects which are getting tested. That suggests an ultimately pragmatic solution and that is, you better test on civics.

JUSTICE SANDRA DAY O’CONNOR: Right.

JUSTICE DAVID SOUTER: And the only good news, I guess, in this particular tension is that there isn’t an absolute tension between fulfilling No Child Left Behind and finding the time for civics. The fact is a lot, for example, of the material that can be used for the -- we will call it the reading segment of No Child Left Behind -- can be civics reading. Not 700 pages at a gulp, but there’s a way to infiltrate No Child Left Behind with some civics. So it’s not an absolute opposition. But the problem has got to be, I think, faced of how you provide an incentive to the school administrations and the school districts to work this in.

I use the reference to administration advisedly because one thing I’ve learned just from being on a group in New Hampshire that is trying to beef things up up there, is that the civics teachers are out there and they are dying to teach. I happen to have met some, both on the grade school level and the high school level, and they are raring to go. We do not have a problem of conversion among teachers.  What we’ve got to do is find a way to find room in a finite school day to get this done. As I said, at the end of the line, we’ve got to have … people don’t like to use the word testing anymore; they like to talk about accountability. But we’ve got to get a civics test squeezed back in.

LINDA GREENHOUSE: And you’re directly involved in curriculum reform effort in New Hampshire?

JUSTICE DAVID SOUTER: Yes.

LINDA GREENHOUSE: Tell us a bit about that.

JUSTICE DAVID SOUTER: Well, I’m a Johnny come lately to it in a way because it was a group formed by an organization called the New Hampshire Supreme Court Society, which is somewhat of a historical society of the New Hampshire Supreme Court, but a society that wants to have some public relevance beyond even the teaching of history. It took up as a project -- actually before I had retired -- a review of New Hampshire curricula practice and the question is, is there something useful we can do. As I said, I joined up when I left Washington, and I have at this point a fairly good sense of what is going on in New Hampshire schools. I’ve met some teachers, and I’ve actually met a bunch of kids at some classes I’ve gone to. And I think, by the way -- to just not leave the subject hanging -- what a group like mine can do and what I suspect a group like mine can do in probably most states is not convince teachers that they ought to teach civics. That’s there, at least in the New Hampshire experience. We don’t have to sell them on that. What we have to do is provide, in effect, the whole teaching apparatus and incentive to make room for this. And the second thing we’ve got to do is provide them with some materials to teach from. There simply is not readily available standardized, universally accepted textbooks of the sort I think I remember. Of course, there is no testing. New Hampshire, like most states, dropped testing from civics.

We’ve also got to provide, if we can do it and raise some money to do it, a kind of continuing education scheme for the teachers of civics, to get them together—very much like what the Supreme Court of the United States Historical Society does for teachers of Constitutional history—and give them some beefed up education of their own, which they are dying to have. So that’s where I think we can do something useful. My guess is that what is missing in New Hampshire and what would be accepted by the educational systems in New Hampshire is probably going to be true in most states.

LINDA GREENHOUSE: So the effort would be to kind of model some best practices that could be exported.

JUSTICE DAVID SOUTER: Yes.

JUSTICE SANDRA DAY O’CONNOR: Well, I’ve got another idea.

LINDA GREENHOUSE: I’m sure you do. [Laughter]

JUSTICE DAVID SOUTER: You understand why we write concurring opinions now. [Laughter]

JUSTICE SANDRA DAY O’CONNOR: That’s right. We all write separately. I think young people today like to spend time in front of computer screens and videos. In fact, they spend on

the average forty hours a week doing that, if you can believe it. That’s more time than they spend with parents or in school. I think we have to capture some of that. I have organized a program to do that and to put the material for civics education in a series of games that kids can play on computers, and believe me, they love it. If you want to look at it and if any teacher wants to look at it, it’s www.icivics.org. It is, if I have to say so, fabulous. [Laughter] [Applause] It really is.

LINDA GREENHOUSE: I, actually, in preparing for this segment …

JUSTICE DAVID SOUTER: I have heard other people say that, too.

LINDA GREENHOUSE: Justice Souter doesn’t actually have a computer so this is all … [Laughter]

JUSTICE SANDRA DAY O’CONNOR: So he doesn’t know about it.

JUSTICE DAVID SOUTER: That’s why I said other people. [Laughter]

LINDA GREENHOUSE: But I did go on the Web site. It’s very engaging and it comes with curricular guides so that teachers can use it as real material. I went on the one about the judicial system, and it’s a series of actual Supreme Court cases. There are ways that you click on the various arguments and the students are asked to pick the best argument to support such and such a proposition. I found myself really getting into it.

JUSTICE SANDRA DAY O’CONNOR: It’s really a success, except do you know what the worst bureaucracy in our country is today? It’s the schools. In 50 states there is not one state where there is one person in that state who can tell the schools what to do and they have to do it. Not one! We are organized with separate individual school districts. We have close to many hundreds in my little state of Arizona. So to get something like this conveyed to all the schools means you have to contact each one, and it is a nightmare. That’s what we are running into with my program. How do you get everybody acquainted? So I have chair people now in 49 of the 50 states. Now, whether they will succeed in contacting all the schools remains to be seen. Maybe you can volunteer. Let me hear from you.

LINDA GREENHOUSE: How closely have you been involved in doing the gaming and deciding what needs to …

JUSTICE SANDRA DAY O’CONNOR: Well, I’ve actually sat with some and previewed some and made suggestions on some. We have experts like MacArthur Genius Award winners who are better at doing this, but I have participated in some to figure out what we ought to do or not do.

LINDA GREENHOUSE: Justice Souter talked about the impact of the deficit in knowledge about the courts and, obviously, that’s one thing. Are there other particular deficits that you’ve noticed as you’ve talked to people or followed this issue?

JUSTICE SANDRA DAY O’CONNOR: In knowledge?

LINDA GREENHOUSE: Yes.

JUSTICE SANDRA DAY O’CONNOR: Oh, it’s total. To start with, they don’t know there are three branches of government. We have already covered that. And even if they do, how do courts work? What do they do? Who is in charge? How do they approach cases? In the case of Congress, they don’t know how things happen.

LINDA GREENHOUSE: I don’t either. [Laughter]

JUSTICE SANDRA DAY O’CONNOR: Well, not much does, I guess. [Laughter] But now and then there is a little trickle down somewhere. Anyway, we know what is supposed to happen. [Laughter] So there is a lot to teach, a lot to learn.

JUSTICE DAVID SOUTER: And things really have changed, again, from the time when we were kids. When I say things have changed, not merely the dropping of teaching but the resulting deficit. One of the difficulties at least that I’ve found in trying to put all of this in perspective is that we have much better studies about what is going on today than we had about what was going on 50 years ago. People weren’t making the same kinds of surveys or, at least, I haven’t run into them. But I have been impressed with one summary which went through a series of rather detailed survey findings in the mid-nineties. The conclusions to be drawn from it were summarized by one of the educators in the field -- a man named William Galston -- in the following way. He said that the numbers seem to show that the degree of civic and broader political knowledge on behalf of a high school graduate in the mid-nineties was equivalent to that of a high school dropout in the 1940s, and the degree of comparable knowledge of a college graduate in the 1990s was about at the level of a high school graduate in the 1940s.

If anything can further be said to underline what is shocking and dispiriting about that is bear in mind that during this same period of time, the growth in the availability of higher education was explosive. Yet, in effect, what we have is the level of collegiate knowledge dropped to high school and high school dropped to dropout. Something really bad has happened.

LINDA GREENHOUSE: In preparing for this I cast a wide net and tried to find some other resources that are out there, just to get a sense of how broadly this problem is being recognized, and, actually, there is a lot going on.

JUSTICE DAVID SOUTER: Oh, yes.

LINDA GREENHOUSE: I noticed that Richard Dreyfus, the actor, has weighed in on this. He set something up called the Dreyfus Initiative, which is a curricular development program. I looked at that Web site. And then on the judicial system in Maine, a coalition of the Federal and state judges are organized as the Maine Federal State Judicial Council and have started a program of video interviews of judges talking about their life and work. It’s really engaging.

They had one judge, a state judge -- and I can’t think of his name -- who talked about being a trouble maker in high school and dropping out of college and taking a long time to get his act together and eventually, obviously, becoming a judge.

The point was to make the judiciary not seem something remote – that people are born with their robes on or something -- but to give citizens the sense that these are real people doing a job for the public who are more or less approachable, and it can be understood on a human level. I wonder, just looking at the Supreme Court, for instance, we seem to be in an era when a number of justices, current as well as retired, are out and about and making the court maybe a little more accessible. You both have been around long enough to see that as a trend. This wasn’t something that was so true when both of you became judges. I would be interested in your reflection on whether there is anything that the Supreme Court itself, either institutionally or as individual justices, can do to address this.

JUSTICE SANDRA DAY O’CONNOR: Well, it was interesting because I’m not in Washington, D.C. all the time anymore, just now and then. I recently was there, and I sat in the courtroom to watch an oral argument. I sat there and looked up at the bench, nine positions, and it was absolutely incredible. On the far right was a woman. Boom. Boom. Boom. Near the middle was a woman. On the far left was a woman. Three of them! Now think of it! It was incredible. It took 191 years to get the first, and we are moving a little more rapidly. I was pretty impressed.

JUSTICE DAVID SOUTER: Well, heck, look at this group here. I’m here for diversity. [Laughter] [Applause]

JUSTICE SANDRA DAY O’CONNOR: That’s good. So things are happening.

LINDA GREENHOUSE: So to extrapolate from what you said: in other words, the Court being able to sort of model.

JUSTICE SANDRA DAY O’CONNOR: Well, I just think the image that Americans overall have of the Court has to change a little bit when they look up there and see what I saw. I thought that was a pretty big change.

LINDA GREENHOUSE: Of course, not too many people get the chance to actually see the Court in action.

JUSTICE SANDRA DAY O’CONNOR: No. But they see the pictures; everybody sees pictures of the Courts.

LINDA GREENHOUSE: Here we are on CSPAN, and CSPAN has kind of a dog in that fight of wanting to bring the Court into the living rooms of America.

JUSTICE DAVID SOUTER: A fight, which I hope CSPAN loses. [Laughter]

LINDA GREENHOUSE: Well, we won’t want to go up on that. [Laughter] Looking at the election this fall, some of the judicial issues, for instance, what happened in Iowa, where sitting judges were thrown out and their retention election …

JUSTICE SANDRA DAY O’CONNOR: Now, that is another subject on which I’ve been trying to be helpful. How we select state court judges, now this is a really important topic. It seems to me that many of the states need to consider some changes. When we started out, the framers of the Constitution got busy and designed a Federal system and when they came to the judicial branch, they provided that the judges would be appointed by the President with the

advice and consent of the Senate. No election of the judges, right? No election. The original 13 states all had similar systems, closely related to that. No election.

Now, a few years went by and all of a sudden we had Andrew Jackson and he saved us down on New Orleans. That was good. But you know what he did? He thought we should elect our state judges, and he was the one who went all through the South and said, ―Now you ought to change and elect your judges.‖ The first state to do that was Georgia. A bunch of others followed suit. And now what do we have? We have this hodgepodge.

Many states, I think about 20, still have popular election of state court judges. That means campaign contributions. They run for office. They have to get money. Who gives them money? The lawyers who appear before them. Some of the clients who appear before them. There was that case that the Supreme Court had …

JUSTICE DAVID SOUTER: Caperton Coal.

JUSTICE SANDRA DAY O’CONNOR: Caperton from West Virginia. Big judgment against Massey Coal Company, $50 million or something of the sort. That judgment was in a trial court in West Virginia and in West Virginia they just have two levels of courts, the trial court and the Supreme Court. The chairman of Massey Coal wants to appeal to the Supreme Court. Well,

that’s fine. It’s a five member court. There was going to be an election at the next general election, and one member of the court had to run for office. His term was up. Well, Massey Coal’s chairman gave the man about $3 million dollars to help with his election campaign in the little state of West Virginia. And guess what? He won. You know, big surprise. Then the case was heard and somebody on the other side said to the re-elected justice, ―Well, maybe you should recuse yourself because of these campaign contributions.‖  ―Oh, no. I can be fair.‖ So he heard the case and in a three to two decision he voted to overturn the judgment against Massey with the participation, three to two decision of this newly elected judge.

The other side then filed a petition with the US Supreme Court saying, ―We were denied due process here.‖ Now, that’s a hard claim to make. I’m glad I wasn’t sitting on the Court for that case. That’s tough. But the Court ultimately decided that was correct. There was a due process denial, and that means that states are going to have to be a little more careful about how they organize their courts. That was the right signal to send, but many states still have their election of judges and that is not a good idea.

I would like to see more states adopt what we call a merit selection system where there is a bipartisan citizens commission formed that will receive applications from people who want to be a judge, review them, interview the people, make recommendations to the governor who can appoint from the list of recommended people. Typically, in these systems, they will serve for something like six years and then have to stand for retention election. They can be ousted.

That’s what happened in Iowa. Their Supreme Court is a merit selection system court. Three of the justices were up for retention election. The Court had unanimously decided a case involving a gay marriage law that irritated some voters in that state and they campaigned against these

judges with the retention. A majority of the voters voted them out. They said, ―No. We don’t want to keep them.‖ So that was a big signal.

LINDA GREENHOUSE: Yes, I wanted to ask you about that because the so-called Missouri Plan -- the merit selection and retention that Iowa has -- has been held up for years by you and others as the preferable way to go. What happened in Iowa -- I mean, yes, some voters didn’t like the outcome of the same sex marriage case -- but I think more to the point, outside groups came in.

JUSTICE SANDRA DAY O’CONNOR: Yes.

LINDA GREENHOUSE: … to use the election to teach a lesson, so-called.

JUSTICE SANDRA DAY O’CONNOR: Right. Correct.

LINDA GREENHOUSE: To teach a lesson. Spent a lot of money. The judges running for retention never encountered anything like that.

JUSTICE SANDRA DAY O’CONNOR: They didn’t do much in response.

LINDA GREENHOUSE: Yes. They were sort of caught …

JUSTICE SANDRA DAY O’CONNOR: That was the problem.

LINDA GREENHOUSE: … flatfooted. So it raises the question in these days of very aggressive, money-laden judicial campaigns, whether the Missouri plan still holds up as a civic improvement. Or do you have a question?

JUSTICE SANDRA DAY O’CONNOR: It does, and Arizona has it and I watch the progress there. It doesn’t mean you can’t have a problem. You can. But it is so much better than the

alternative. You can’t imagine. But it tells me that you have to beware and if there is something like what happened in Iowa, those who are hoping to be retained better be active and better do something in response.

LINDA GREENHOUSE: So they need campaign committees?

JUSTICE SANDRA DAY O’CONNOR: Yes, they do.

LINDA GREENHOUSE: They need contributions?

JUSTICE SANDRA DAY O’CONNOR: If there is going to be a major effort to unseat them, yes.

LINDA GREENHOUSE: So you are kind of back in the soup.

JUSTICE SANDRA DAY O’CONNOR: Well, not as bad because you get over the hump and then go back to what it was. But it’s not going to happen every time.

LINDA GREENHOUSE: Just to draw a link between that sort of problem and what we were talking about earlier: do you think that if the public has a better understanding of the role of the judiciary through some kind of education, that this sort of thing could be mitigated in some way? Or if an issue is hot enough, does it just kind of overwhelm?

JUSTICE SANDRA DAY O’CONNOR: Well, occasionally, there will be a hot issue. In our country it tends to turn on abortion, gay marriage or something like that, and voters can get pretty excited about some of those issues.

LINDA GREENHOUSE: Justice Souter, you were a state judge for years in your career. Now, you were appointed.

JUSTICE DAVID SOUTER: I was appointed, yes.

LINDA GREENHOUSE: Right, and without a retention election system.

JUSTICE DAVID SOUTER: That’s right. Essentially, it’s the Federal system except there is a mandatory retirement in New Hampshire. I didn’t have to face that, but I agree with Justice O’Connor that if you are going to have an elective system, try to have the Missouri Plan. You still can’t make the silk purse out of the sow’s ear, but at least you are along the way a little bit.

The Missouri Plan and then any system, even with retention elections, is in tension with the sort of fundamental understanding that animates an appointive system with life or long term appointment, and that is the understanding that when the heat is on, we tend to do the wrong thing. We get excited. Our judgment evaporates. That is why you want a branch of government which has reference to principles that are going to endure beyond the heat of the moment to say,

―Wait a minute. You just violated your own rules.‖ If you cannot have a branch of government with the power to do that and with the incentive to do that, knowing that those who make the declaration will not be thrown out on the street the next morning, you, in fact, are compromising the very concept behind a rule of law and a rule of enduring law. That’s the fundamental problem, even under a Missouri plan.

The development that has exacerbated that problem is the development of money in judicial elections which has, in its turn, been exacerbated by the recent development in the law which took place after both Justice O’Connor’s and my departure, but on which we had expressed opinions earlier: to the effect that corporations cannot be limited in the kind of expenditures that they make for political purposes. If that were not sufficient exacerbation, that combined with the legal avenues now for disguising the sources of political contributions makes for a very general threat to political integrity and a particular one to the judiciary. How does one respond? How does the judiciary respond to that? Well, the judiciary as a political entity can’t do anything about it. But there is one authority that the judiciary has got to start thinking of using, because I assume the occasions are going to arise.

Think back for a second to Justice O’Connor’s reference to the West Virginia election case. The reason the issue could easily be focused was that it was a matter of public record where the $3 million dollars came from. It came from, I forget, the president or the chairman I think you said, of the company, which was appealing the very large verdict against it. What does a litigant do now in a state with elective judges when, in effect, as a matter of Federal law the limits are off on what corporations can do. In fact, there are avenues for contribution which do not disclose the ultimate source of the money. I know what I would do if I were a litigant in that kind of situation: I would demand, in the name of due process, a disclosure of all sources of contributions to the judges on that court before which I was going to appear, and an analysis of the sources if, in fact, the main source was or might be opaque. I think it’s inevitable that this is going to come and I don't know really anything that litigants can do in the name of due process short of this, unless they are willing to take the chance of just being a fish getting shot at in a barrel and they don’t know who is firing. I think this has got to come.

JUSTICE SANDRA DAY O’CONNOR: I do, too.

LINDA GREENHOUSE: Where this is leading, I think, given the current Supreme Court majority’s view of the First Amendment is the clash between the First Amendment and due process.

JUSTICE DAVID SOUTER: You’re right, but this oversimplifies a little bit, but not by an awful lot. Most of the Constitutional issues that come before the Supreme Court of the United States are not questions of should we apply this principle as it logically ought to be applied, but rather questions of should we apply this principle that might apply or that principle that might apply.

The essence of principle decision making by a court like the Supreme Court of the United States is in the reasoning that selects the principle that is going to predominate in a given case. Principle decision making isn’t simply being logical. It is being reasonable in selecting from among legitimately competing principles. And as you say, Linda, we’re going to see that as between the current view of First Amendment rights and an enduring view of due process rights.

LINDA GREENHOUSE: So it’s a question of whether the current majority is willing to follow the logic that they have set out right over a cliff. Is what you are saying?

JUSTICE DAVID SOUTER: You will have to ask them. [Laughter] But I mean, seriously, the path that they have followed in recent cases simply has not encountered the issue that we are talking about here. Bear in mind that the same Supreme Court that decided Citizens United is also the Supreme Court, one personnel change different, from the Court -- well, at this point two personnel changes -- the same Court that decided the West Virginia contribution case. So you’ve got a court, which has quite clearly and robustly espoused both the principles. This isn’t a non- due process Court any more than it is a non-First Amendment Court.

LINDA GREENHOUSE: Justice Kennedy in the majority in both those cases, right?

JUSTICE DAVID SOUTER: So this is a Court which has not shown itself shy of confronting either due process or First Amendment issues. I have no reason to believe it’s going to be shy about being candid about how you resolve the tension when that tension gets to them.

LINDA GREENHOUSE: Just on a personal level, it occurs to me listening to you, what’s it like having been on the Court for a good chunk of time to watch them? Obviously, you feel a mistake was made in Citizens United. What does that feel like?  Do you feel, ―If only I had been at the conference table maybe I could have made a difference?‖ It must be a strange feeling to be on the outside looking in after all those years.

JUSTICE SANDRA DAY O’CONNOR: But you have to accept the fact that people are going to be serving there for different periods of time. You are not going to be there forever. Other people may disagree with some of the things that you have believed, so you just can’t approach it from the standpoint that you will never be disappointed or concerned. It is very possible you will. But that’s life.

JUSTICE DAVID SOUTER: Of course, there is one, possibly radical answer to your question, Linda, and it comes from the old psychiatrist joke about the young and the old psychiatrist who are talking at the end of the day. And the young psychiatrist, his tie is pulled open and he looks exhausted and harried. And the older guy looks as fresh as he did at nine o’clock. The young doctor says, ―How can you seem so fresh? How can you stand it, listening to these patients all day long? Everything is wrong. You sit there listening to them. Why doesn’t it get to you?‖ And the older doctor says, ―Oh,‖ he says, ―that’s the secret. Who listens?‖ [Laughter] And that may be one answer for the retired Supreme Court justices, Who watches? [laughter] That has not been the solution that either of us has followed.

LINDA GREENHOUSE: I think you are feeling a little liberated.

JUSTICE DAVID SOUTER: Not liberated from, really, but liberated to. I’m playing as Isaiah Berlin here. I had no desire, in one way, to leave the Supreme Court. I loved my colleagues. I liked the work that I was doing. There were days when I wished things had turned out differently, but I still loved the Court and just about everybody in that building. But I feel liberated to do things that I couldn’t do on that Court. It is confining in time, as well as in discretion, and there were other things that I wanted to do while I was still in the condition to do them. So I’m liberated to do things rather than liberated from things that I disliked because I didn’t dislike them.

JUSTICE SANDRA DAY O’CONNOR: That is a better way to put it.

LINDA GREENHOUSE: Well, I know people in the audience have been writing down questions and this may be a good time to turn to some of them if there are any.

JUSTICE SANDRA DAY O’CONNOR: Do we have some questions?

LINDA GREENHOUSE: Amy Macdonald has a set of them, and I’m sure we will collect more. Okay. Do you think any of the decline in the enthusiasm for civics results from a change in the rhetoric of the purpose of government? That is, today the focus is much more on privatization, enabling the free market. So I guess that means we don’t hear much talk about the higher purposes of government. There’s a lack of inspiration.

JUSTICE SANDRA DAY O’CONNOR: I don’t think that’s what I’m hearing out there. I think it’s the fact that you have young people who aren’t learning anything about it, so it’s not unexpected that there’s not much discussion or concern.

JUSTICE DAVID SOUTER: Yes. I would say the same thing and, again, historical perspective helps here. This decline started 40 years ago. I hope I’m not going out on a limb here. I don’t think it was until around 1990 and into the nineties that people began to say, ―Hey!

Wait a minute. Is something going wrong here?‖ The unfortunate state of public rhetoric in the United States had not reached anything like today’s characteristics at that time.

Also, I alluded a moment ago to the fact that I’ve seen a good many civics teachers in the last year and I’ve seen some of the kids that they teach. I’ll just give you two examples. I listened to a fourth grade class from one of the New Hampshire towns who was visiting the State House one day, and I happened to be around. That town happened to be blessed with teachers in the fourth grade who had themselves enthusiasm for teaching. And, you know, the kids were a bunch of winners. I listened to the governor asking them questions to find out how much they knew.

Those kids knew more about civic organization in the fourth grade than I knew in the fourth grade. Their arms were going out of the shoulder sockets trying to answer the questions. It was terrific. And I visited a combined couple of high school classes in my own town. Again, they were blessed with a couple of teachers who were real sparks. I mean they were gung ho. So I don’t have any reason to believe that the lamentable state of public rhetoric in the United States is going to be, itself, a roadblock to educational reform.

JUSTICE SANDRA DAY O’CONNOR: No. I agree.

LINDA GREENHOUSE: Here’s a question that is maybe somewhat related. Is the decline in the teaching of civics related to a general decline in educational standards? Some would argue that a 1935 high school diploma is the equivalent to a 2010 college degree.

JUSTICE SANDRA DAY O’CONNOR: I think there is a decline. I would share some of that concern. I think that at an earlier period in our history, a great deal more was learned in the early grades than it is today. We just diluted it as we have gone along.

JUSTICE DAVID SOUTER: I’m going to take a pass on that. I don't know enough to answer that question.

LINDA GREENHOUSE: Here is a question. Is it reasonable to think that states as divergent as Massachusetts and Texas can be brought to teach a common civics curriculum? [Laughter]

JUSTICE SANDRA DAY O’CONNOR: Good question. I think it’s possible. [Laughter] You may have a hard time on certain principles, like how should you organize the courts. In Massachusetts you don’t have the popular election of judges in this state. You’ve got a pretty decent system and there are long-term appointments.

In Texas—you know, I was born there and I’ve spent time in Texas. If you are a lawyer and you have a trial in a Texas court, the first thing you have to do is go do some research on the judge and try to find out how much money the judge has been given by whom to get elected. There are few records and sometimes you can find out some of that. That’s what you have to do. Then you have to meet or exceed it or you are not going to get a hearing in the judge’s court room. It’s pretty sick. Now, why would you want a system like that? I’ve been to Texas to talk to them, to the legislature to see if they wouldn’t be motivated to propose a change in their system. ―No, thank you. We like it.‖ So it’s very discouraging.

LINDA GREENHOUSE: So it is hard to think that the, what is it, the Texas Railroad Commission or whoever makes the curriculum there would include in the curriculum any criticism of that kind of system.

JUSTICE SANDRA DAY O’CONNOR: There are lots of decent teachers and willing students and everything else in Texas, a lot of good things. But I don’t think their system of judicial selection is ideal.

JUSTICE DAVID SOUTER: Just going to the implications for civics teaching, I am guessing that one of the things that I am going to see, that we are going to see, if the efforts to beef up teaching in our respective states begins to pay off, is a contrast between the teaching the materials of our day and the teaching materials that are going to be used in the future. I remember the book in the ninth grade, the blue civics book. It was probably pabulum, but it was pabulum that got a lot of basic factual material on the page and we left, I think, pretty much with that in our heads.

Then notion, I think, of a generally acceptable textbook of that sort today on a national level is antique. My guess is we are not going to see such a book. What we are going to see is a combination of what is going on in those schools that are teaching civics today. An awful lot of that material is getting downloaded and is then getting exchanged teachers to teachers. There is a decentralization of texts going on, and I would be very surprised if that particular decentralization trend is going to change.

LINDA GREENHOUSE: Here is a question. How can we get schools to choose to re-include civics in their curricula when they say they don’t even have enough time or money to teach math and literacy well? And the questioner works at Discovering Justice, a civics organization here in Boston. She poses a financial question.

JUSTICE SANDRA DAY O’CONNOR: Well, it’s hard. But that’s why I am enthused about a program that can be used by kids on their own that they love and are having fun with and they are going to learn from. Now, that’s one way to help get around it, and I’m excited about that.

JUSTICE DAVID SOUTER: I think there are two answers to that question. One is sort of the fundamental value answer and the other one is the pragmatic, how-to-do-it answer. The fundamental value answer is something that, I guess, has been lost from the discourse or the consciousness. People like us and people who take up this cause in other states have simply got to keep stating it and they’ve got to keep pushing it. It is basically this. A famous quotation: in the aftermath of the 1787 convention Benjamin Franklin was asked what kind of a government the Constitution would give us. And his famous answer was, ―It will give you a Republic if you can keep it.‖ Republics can be lost. Jefferson made the remark that a people both free and ignorant has never been seen and never will be.

There has got to be a component of knowledge and understanding if democracy is going to survive.  When two-thirds of a nation do not know the basic simple structure of their government; when six out of ten people, adults in the United States, cannot answer questions which would once have been appropriate for school children, then we are getting to the point of the Franklin and Jefferson source of worry. If ever we were in a position of worry, it is a greater worry today than at any other time in our lives. There has been no time in my life or our lives in which the degree of frustration with government and dissatisfaction with government has been as great and as volatile as it is today.

The responses to that frustration -- and a frustration, by the way, which I think probably everyone on this platform also shares -- the responses to the frustration have not been merely political responses -- throw these bums out and bring in someone new. The responses have included suggestions for structural change. You have heard the suggestions for Constitutional amendment and they go even so far as modification of the14th Amendment. When that kind of possibility is being bruited around in the public discourse, we have got to be very, very worried about the inability of the majority of the population to understand the structure of what we have from which follows the location of responsibility within the polity and against which has to be measured any proposal for change.

The proposals for change, like most moral and political questions, are not or cannot intelligently be looked at as simply a question, ―Would it be a good idea to do thus and so?‖ These invariably are, whether or not they are recognized as such, these invariably are questions, ―Is this proposal something which would be better than that or that which we have?‖ The fundamental nature of these moral and social political questions is, compared with what? And if you don’t know, if the vast majority of the polity does not know what we have now, it is impossible to expect that an informed -- by definition, an informed -- judgment can be brought to bear on proposals for change. That is why it is not Chicken Little to say we have got something to be worried about, seriously, right now, about the continuity of constitutional government as we know it in the United States.

The pragmatic how-to-do-it answer to the question is: those of us who are beating the drum like this and who are on commissions like the one I’m on in New Hampshire have got to be very practical in helping people who would like to do the right thing find the way to do it. I mentioned the conflict of the testing scheme and the non-tested subjects and that is, get the non-testing subjects worked into the reading curriculum which is a tested subject. I personally think most educators today think that in order, really, to compete with the pressure for testing, if it persists, you are going to have to have some testing in civics. We used to have it. We used to in my state. I presume we did in most states.

JUSTICE SANDRA DAY O’CONNOR: But we don’t now.

JUSTICE DAVID SOUTER: No.

JUSTICE SANDRA DAY O’CONNOR: And I’ve been over trying to promote some changes in the No Child Left Behind and Congress is not, apparently, going to entertain that.

JUSTICE DAVID SOUTER:  Oh, no. Well, I shouldn’t say, ―Oh, no.‖ I really don’t know. But people like us have got to make a two-pronged argument. We’ve got to make the argument clear on why this is not funny, why we have got something to worry about in the United States of America today, and then we’ve got to be pragmatists and say, ―Okay. If you want to do what we are pushing for, get testing back in on the state level. Get this reading material into No Child Left Behind or even consider cutting back on some other things that may not be as fundamental to the political stability of the United States as civic education.‖

JUSTICE SANDRA DAY O’CONNOR: That’s right.

LINDA GREENHOUSE: So just to make sure I understand the basis of the urgency that you are speaking from. It’s not that the people who are coming up with these ideas are lacking in civic knowledge. It’s that the population as a whole lacking in it is vulnerable to manipulation.

JUSTICE DAVID SOUTER: Yes.

JUSTICE SANDRA DAY O’CONNOR: Correct.

JUSTICE DAVID SOUTER: We don’t have a broad basis for critical judgment in the United States today when two-thirds of the population doesn’t know the fundamental structure of the government.

LINDA GREENHOUSE: Question. What do you believe are the three most important pieces of knowledge that American students should possess about our government? You can come up with three between you.

JUSTICE DAVID SOUTER: You go ahead, Sandra.

JUSTICE SANDRA DAY O’CONNOR: Oh, heavens’ sake. [Laughter] Well, you know, I would start with how is it organized? What are the three branches? What do they do? How does it work? How do citizens get to know about them and participate? I mean these are the fundamentals that we would hope would be taught in the classroom.

JUSTICE DAVID SOUTER: I agree. Know at least the basic structure, three branches. Two, have an idea of what those three branches do. I’ve listened to fourth grade classes who can answer those two kinds of questions fairly well. So it’s not an overly ambitious agenda. And I guess the third thing I would hope people would know about the government is illustrated by a story that a friend of my told me, who is a lawyer in New Hampshire and a very close friend of mine.

He was visiting some New Hampshire school on Law Day once. This is back ten or 15 years ago, and the subject of the exclusionary rule in criminal cases came up, the rule that if the evidence is illegally seized in violation of Constitutional standards it may not be used by the government in its case against a criminal defendant. Some kid in the class, this was a junior, probably high school I would guess, said the basic question:  ―Why should the public interest suffer by letting some criminal go free because a law enforcement officer didn’t get a warrant?‖ And my friend, Bill Gallan, said to the kid, ―Because you’re next.‖ And if there is any one fundamental principle of good government, it is the principle behind the exclusionary rule and other Constitutional limitations. Ultimately, it is the golden rule: Treat others the way you want to be treated with the corollary that if you don’t, you are not going to be treated that way either. If you had to erase everything in the United States Constitution or let’s say the rights Constitution as opposed to the structural Constitution and you could leave one thing, the one thing I would leave would be the equal protection clause.

We are in this together and we are all going to be treated the same way. If that were understood, I would take my chances on substantive outcomes. And that is the fundamental lesson, I think, behind governments of powers that are limited both structurally and for the sake of individual liberty. So that would be my third lesson. And I’ll put it in the terms of, you’re next.

JUSTICE SANDRA DAY O’CONNOR: Well put.

LINDA GREENHOUSE: No further questions can top that, seriously. So I’m going to thank you both for being willing to do this and thank the audience. [Applause]

THE END