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Annual Lecture 2002 : Life and the Law-A Personal Journey

Speaker: Justice Sandra Day O'Connor, Supreme Court of The United States of America
Date:
2002-09-16T00:00:00+08:00

Thank you very kindly, CJ for that very kind introduction. My husband and I have felt very privileged indeed to have the opportunity to visit Singapore. It's a long way from the Lazy B Ranch to Singapore. And we have looked forward with much anticipation to visiting here and we are not disappointed. You make strangers and visitors feel very welcome indeed.

 

AS the CJ told you, I'm the first cowgirl to serve on the United States Supreme Court. I grew up on a cattle ranch in the American Southwest, a ranch that was started by my grandfather Day in 1880 on land in both Arizona and New Mexico. It was still part of the territory of Arizona in 1880 and anyone who wished to use it could do so. It was federally owned. My grandfather went to Mexico and bought cattle, which we branded with a Lazy 'B' stamp - the 'B' was lying down on its side and so we called it 'Lazy B'. Singapore, as I understand it, consists of roughly 240 square miles. The Lazy B ranch was a bit larger than that. Singapore has 4 million people, and we had 10 people - more or less.

 

It was very spartan territory there. The ranch was on high desert, about 5000 feet in elevation, but saw no more than about 10 inches of rainfall.

 

My favourite American author was Wallace Stegner, he grew up in Saskatchewan, but it was an area not unlike the area in which I grew up. He said there was something about living in a big empty space where the people are few; where one is exposed to the sun from 4 in the morning to 9 at night and to a wind that never seemed to rest. There's something about exposure to a big country that not only tells an individual how small he is but steadily tells him who he is.

 

Most ranch land provides better grazing than where the Lazy B Ranch was located. It was along the Gila River and it was populated by such things as deer and antelope and racoons and badgers, coyotes, rabbits, bob-cats, rattle snakes, desert tortoises and all kinds of insects. My grandfather had never intended to live on the ranch, he planned to get someone to run it for him and planned to go live in Pasadena, California. But it didn't work out, because the man he hired put another brand on the cattle.

 

My father was born on the Lazy B ranch, and ended up, when his father died, being sent back to the ranch to settle the estate. My father stayed there until his death in the 1980s. When my father took over the management of the ranch, he made a trip to Texas to buy a load of bulls, and he says he got my mother as part of the deal. Her father sold my father the bulls, and he invited my father to come have dinner at their house, and if there is such a thing as love at first sight, it occurred that night. When my father went back to the Lazy B Ranch, they started writing to each other all through the summer; they wrote passionate love letters. And then my father wrote to my mother that he didn't have much of a future, stuck on a ranch and that surely my mother could find somebody better to take care of her and that they should just end the relationship. There the correspondence ended; two weeks later, they eloped. My mother joined him at the Lazy B ranch. Her mother was not pleased about this. At the time, there was only a four-room house, no indoor plumbing and no running water. There was nothing. My mother thought it was going to be all right. But her mother's advice to her was, 'Ada Mae, don't ever learn to milk the cow'. My mother didn't. She managed all the years to be very nicely dressed, and whenever she went outside she had the good sense to stay out of the sun. She and my father led a very happy life on the Lazy B Ranch.

 

My earliest memory of the ranch was of sounds. It was a place of all-encompassing silence. Probably living here in Singapore with several people around you I don't think you get to experience silence like that. But it was complete silence, unless the wind blew. If the wind blew, then the big windmills would start to turn. But it was a remarkable place; at night, I would lie in bed and hear the coyotes howling in the distance. It was a very lonesome sound, I have to say.

 

Our obsession was water. Water is one of the most precious things we have in the world. I predict that in the 21st century we will have to deal with water shortage. I understand even Singapore has to buy a little water offshore. All our waking hours were spent worrying that we would not get enough rainfall to grow enough grass to feed the cattle.

 

The people on the ranch tended to be the old style cowboys. They tended to be unmarried men who lived all their lives on the ranch. They were special people, and I learnt a lot from them. They were not all educated, some were illiterate. They could not read the written word, but they could read signs. They could tell you whether a horse had gone past the area, and whether the horse had a rider or not. Everything on that desert seemed to have the capacity to hurt you. You could be punctured by a thorn, or hit by a brush as you rode along… whatever it might be, there was a protective mechanism on almost everything in the ranch. What is it that I learnt from that kind of life?

 

Certainly all of us are shaped by our experiences. The value system that we learned out on that ranch was simple and unsophisticated. What counted there was competence and to do whatever was required to keep the ranch in good working order. Verbal skills were less important than the ability to know and understand how things worked in the physical world. Qualities like honesty, discipline and good humour were valued most.

 

The Lazy B ranch was eventually sold in the early 1990s, and is no more. But it will always certainly be in my own heart and memory.

 

There was no school nearby so beginning with kindergarten, I was sent to live with my maternal grandmother in El Paso, Texas. I attended school there until high school. I then went to Stanford to read economics. While an undergraduate, I took a class in law and my professor was really an amazing man. He was highly intelligent and inspiring and he was the first person, in my experience, to urge upon me the notion that an individual can really make a difference in this big world of ours. This is a very big world and we have billions of people worldwide. Individual qualities of leadership and concern can cause each of us to make a difference. I decided that I would apply to law school at Stanford to see if I could learn to make a difference.

 

I was accepted. Much to my surprise, I learnt that there were not many women in the law school. There were not many women in law school in those days. I learnt from Mrs Lee Kuan Yew last night that she attended law school about the same time as me, and there were few women there too. There were about four women in my law school. I just assumed that it would be easy to get a job after I graduated. I applied in California and I couldn't get a job. I finally asked an undergraduate friend of mine whose father worked in a big law firm to see if he could get a job interview. I went to Los Angeles and we had a pleasant conversation, and finally the partner said, 'Ms Day, how do you type?' I said, 'fair … … middling'. He said, 'well, if you type fair enough, I can give you a job as a legal secretary'.

 

But this wasn't what I wanted, so I went to see the District Attorney in California for I had heard that he had once had a female lawyer on his staff. We worked out an arrangement and I went to work with him. This was in the public sector. In those days when opportunities for women emerged, the work was in the public sector. I found this work to be exciting. John and I celebrate our 50th year of marriage this year. Now around our first few years of marriage, he was drafted during the Korean War. He was sent not to Korea, but to Germany for some reason. This meant I had to give up my hard-won job and follow him to Germany. I succeeded in getting a job there for the government quartermaster as a contract lawyer. I enjoyed that for the three years he was in Germany. When he was discharged, we went to Phoenix, Arizona, but the law firms there still didn't hire women as lawyers. So I opened a law firm in the suburbs in Phoenix with a young man I met when we were studying for the bar exam in Arizona. We just did any work that came through the door; it might be writing a will, or doing some form of collection work for the local merchants. It was not the type of work one usually sees in the United States Supreme Court. I took a number of criminal cases. The judge would appoint a lawyer to represent the defendant and I took some of the appointments and learnt about criminal practice the hard way I guess.

 

Anyway, I enjoyed my work in Phoenix and I had three children over the course of the next few years. Then tragedy occurred. My baby-sitter moved to California. I had to stay at home the next few years. I was afraid that I would never get back into the mainstream legal practice. I started a lawyer referral plan, I served as a juvenile court referee and heard those type of cases. I served as a member of the planning and zoning commission and other voluntary activities. Now I don't know about your situation here in Singapore but in the United States, volunteer service is quite a common activity for people and if you can find a lawyer who can do it, you really think you have an advantage because you get all this free legal service. Finally, I decided I'd better get a job because I was too busy as a volunteer.

 

When there was a vacancy in the Arizona state senate, I ran for election a couple of times and later became majority leader. When I became senate majority leader, really nothing happened in Arizona without my consent. I found all these people coming to me who wanted something and they'd tell me lots of flattering things and I decided that this wasn't healthy in the long run. I'd be better off as a judge where everyone would be criticising me. I became a trial judge. Now when they say 'sat on the bench' they really mean it because I literally 'sat on that bench' for hour after hour. It was like sitting in front of a soap opera because you'd hear the most remarkable stories. Sometimes the stories would be very sad and I'd find myself on the verge of tears so I pretended to write something and get over my concerns. Sometimes what I heard would make me laugh. Sometimes it'd just be out and out boring, but you didn't want to fall asleep either.

 

But it was interesting to serve on the trial bench and you certainly saw the full spectrum of life. I went on to the Court of Appeals.

 

In 1981, I got a call from the then Attorney-General under President Ronald Reagan, a man named William French Smith. He'd been a partner in the Los Angeles firm that had offered me the legal secretary job. So when he asked me whether I could come back to Washington to talk about a vacancy, I assumed it was to talk about a secretariat job. But we did have the conversation. Then Reagan called me a week later to ask if I could take up the Supreme Court job. This was when Justice Potter Stewart stepped down from the bench. I had some qualms about the job because I felt he could find more qualified than I. The person who felt most strongly that I should take the job was my husband despite the fact that it meant that he had to give up his job in Arizona which he really liked.

 

Well, I've been there 21 yrs and it's been a remarkable experience. Sitting on the nation's highest court, one can get a sense of the nation's legal concerns because we have had a great many legal petitions. In 1981 there were 4000 petitions; last year, there were 7500. Fortunately, Congress has given us a discretion over which cases to take. I am glad that we have that discretion. All of us - nine judges - have to read those thousands of petitions for certiorari and decide which to take for review. We only take about 100 or so each year. They tend to be cases where the lower courts have reached conflicting results. This is where we see the role of the Supreme Court as being to develop a body of reasonably consistent law. We do not see ourselves as adding another layer of appellate review. We are concerned to make clear what the federal rule is, in case the lower courts are in disagreement.

 

In these years on the bench, it seems to me that in the United States, our constitution defines individual rights, largely through the Bill of Rights. The independent judiciary is entrusted to safeguard those guarantees found in the Bill of Rights against encroachment from the other branches of govt. Now I'd like to spend the rest of this time discussing the judicial role in the protection of individual rights as it has taken shape there. That role emerges as perhaps the most important one that our court has, at least to the citizens of our country. The role of the judiciary in enforcing individual rights has always been a very contentious issue.

 

Although the American judiciary has played a leading role, it has come under a good deal of criticism. Whether you see the classical theorists or if you look at writers like James Madison and Abraham Lincoln, majority rule always has been seen as the foundation of the democratic system, and the constitution was written in terms of what the three branches of government can do. But our constitution does not end there; like much of politics, the United States constitution was the result of compromise. The federalists were content with a broad statement; the anti-federalists wanted a specific list of rights retained by the people. In order to ensure ratification, the Bill of Rights was drafted and adopted to delimit the power of government and to protect the autonomy of the states. And this is the irony of the American Bill of Rights. The appropriate analogy is the ball and chain. The Bill of Rights was a restraint to prevent the federal government from getting out of control. The Bill of Rights is an anti-majority document. In the Bill, the framers built a wall around certain individual freedoms, limiting the majority from oppressing these. It protects individuals, and prohibits the deprivation of life or liberty without due process and includes a number of rights for criminal defendants. All these guarantees are written in a language which most Americans can understand. But just writing them down doesn't mean the rights will be respected.

 

There were two additional developments which meant that the constitution would be a true guarantor of individual rights. The first was the power of judicial review, the cornerstone of United States constitutional law. In 1803, in Marbury v Madison, the United States Supreme Court declared that it had the authority to declare an act void if the act violated the constitution. That principle has survived to this day and the power of the independent courts to declare unconstitutional the acts of another branch of government is the foundation of the Supreme Court's role in protecting individual rights. Without that power, the rulings of the Supreme Court would be less enduring and less important.

 

The second important development came 80 yrs later with the passage of the amendments after the Civil War, particularly the Fourteenth Amendment to our constitution. The Fourteenth Amendment ensured that the Bill of Rights would be applied to the states as well as the federal system. The federal system has been a complication for our courts, because the states each have their separate court systems, their state constitutions and their sovereign powers. How each state and its courts can react is at the heart of a good deal of Supreme Court jurisprudence.

 

Just saying that… does not mean that judges are perfect or that the Supreme Court has always lived up to it expectations. But our errors themselves support my point. Most of our discredited cases arose where the Supreme Court was unsympathetic to the civil and human rights of the minority. Because the judiciary has an obligation to enforce the anti-majoritarian provisions, history has not looked fondly on the court's failure to protect the minority.

 

In the Dredd Scott case, the Supreme Court upheld the right to hold certain people in slavery. It held that black people were not citizens and could not sue in the federal court. In the process, the court said that blacks were inferior, unfit to associate with the white race. It was a remarkable statement to come from that court and that unfortunate decision was one of the factors that led to my country's most tragic war, the Civil War in the mid 1800s.

 

Women, although not technically a minority, were long locked out of the political process. They were not allowed to vote. Take the legal profession, women were thought not to be qualified for adversarial litigation because it required sharp negotiation, exposure to the unjust and the immoral. The most famous case involves Myra Bradwell of Chicago, Illinois She applied to the Illinois bar and was refused admission. The Illinois bar reasoned that as a married woman, her contracts were not binding and the contracts were the essence of the attorney-client relationship. The United States Supreme Court agreed with that.

 

Today we don't follow these decisions. We instead look to them as examples of where the Supreme Court has gone wrong. The Supreme Court today understands that one of its most important functions is to protect minority groups from discrimination of the majority.

 

In 1954, Brown v Board of Education called for an end to segregation that had become a way of life in a large part of the United States. That decision and those that followed from it caused the court, under the banner of equal respect and due process, to take a key role in the issue of race relations.

 

But beyond the racial context, some of the Supreme Court's most important cases after Brown involved gender classifications, beginning in the early 1970s, the Supreme Court made clear that it would no longer accept unquestioningly the story that women were different from men, as regards legal rights anyway. The court invalidated a broad range of statutes that discriminated on the basis of gender.

 

Now, of course many of our recent decisions, including those striking down laws that disadvantaged women and blacks, have led to a good deal of criticism. When the court takes the lead in enforcing social change, some say the court is too activist and should instead defer to the will of the majority. For example when the courts handed down the decision in Brown, the National Guard had to be called out to enforce the court's edicts. In 1960, when the court struck down some limitations on abortion in the first trimester of pregnancy, some took to the streets to protest.

 

Given the lack of accountability of the Supreme Court and given the power by the court of the mechanism of judicial review, it is not surprising to find that the Supreme Court finds itself in the centre of controversy. It is not surprising that the Supreme Court sometimes finds itself at the centre of public controversy. Legislative bodies are more representative of the people and more directly controlled by the people; it makes sense that these bodies have the principal responsibility to determine the fate of the people. The justices of the United States Supreme Court, like the members of the Singapore Supreme Court, are not elected, we are appointed by the United States President. The justices do not serve for 2, 4 or 6 years; we serve, as the constitution puts it, for good behaviour. Often that translates into life. And the Supreme Court does not reflect the current makeup of the population. All of the current justices are over 50 years old while only 30% of Americans have lived more than five decades; all the justices are lawyers (not all Americans are lawyers!); and while women in America constitute over half of the general population and increasingly the Law School intake is 50% women, for women on the Supreme Court, well, half of us is here with you tonight.

 

For these reasons, among others, the Supreme Court should not be a leader. I view the court a little like a fire-fighter. It is a reactive institution, it puts out blazes here and there, making sure that we don't burn our house down. But there are times when our court takes a leadership role and is probably right in doing so. The hard question is distinguishing when the court should take a leadership role and when it should defer to the will of the legislature. I think I can offer a couple of guiding principles.

 

The court is on its firmest footing when it invokes its anti-majoritarian powers of review. Members of our first Congress drafted the Bill of Rights to ensure that the government cannot take away our most fundamental liberties. The Fourteenth Amendment and other Amendments are there to ensure that the majority does not trample over the minority's rights. It is the institution which is best situated to ensure that the will of the majority does not oppress the minority. The doctrine of judicial review places much emphasis on the protection of individual rights by the judiciary in particular because the courts are not part of the executive and legislative branches.

The courts are on firm footing when it acts to ensure that outsider groups (for example, women and minority groups) have access to the political process. This includes the right to political process and the right to speak out in making their claims. There is a series of important decisions in this area that protected the membership rights of the National Association for the Advancement of Coloured People and has upheld the right of protestors who were protesting the segregation of public facilities such as restaurants and swimming pools and libraries and public transportation. The unfortunate fact is that like the rest of the world, the United States continues to be plagued by poverty, and discrimination against minority groups. The ultimate responsibility lies with the people and with their democratically elected leaders.

 

There are a number of examples where our courts have acted to preserve the civil rights of our citizens and in so doing, have protected the right of the minority to persuade others and the majority of the correctness of their position. I think the judiciary has acted to ensure equal rights under the Bill of Rights for our citizens to foster a healthier and more vibrant democracy.

 

It has been a great privilege for me to visit Singapore and for you to listen to my long description of life on the 'Lazy B'. I congratulate you here in Singapore for having established principles that stand out in this region of the world, that stand out for principles of good governance and for freedom from corruption. These are examples that are very important to the world today. I would like to thank the Chief Justice for his wonderful hospitality. It has been such a joy for me to get acquainted with some of you in high office. I sincerely hope John and I can come back to Singapore again sometime soon. Thank you.