In Search of the Constitution; 108; Justice Sandra Day O'Connor

SANDRA DAY O'CONNOR: It isn't easy to have both a career and a family. I've worked very hard to do that. I've never had any spare time or free time that I can recall, as a result. But it was worth it. And I love my family dearly. And I wouldn't have given that up for anything. But at the same time, I wanted a career.

BILL MOYERS: In this hour, Supreme Court Justice Sandra Day O'Connor, in her first televised interview. I'm Bill Moyers.

RONALD REAGAN: I'm announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I could possibly find. I will send to the Senate the nomination of Judge Sandra Day O'Connor of Arizona Court of Appeals for confirmation as an Associate Justice of the United States Supreme Court. She is truly a person for all seasons.

BILL MOYERS: Only seven months into his first term, President Reagan fulfilled his campaign promise, and nominated Sandra Day O'Connor to be the first woman to serve on the Supreme Court.

SANDRA DAY O'CONNOR: And I'm extremely happy and honored to be nominated by President Reagan for a position on the United States Supreme Court.

BILL MOYERS: Many interest groups saw in her appointment hope for their cause. Feminist leaders praised her nomination because she was a woman.

ELEANOR SMEAL: You've opened a door. You've opened a door with someone who is sensitive, it appears, to women's rights, which is very important. If it had been a person opposed to women's rights, it would make a mockery, really, of advancement.

BILL MOYERS: Republicans liked her political record in Arizona, and her legal background.

BARRY GOLDWATER: I could probably find at least 100 very confident women, women lawyers, in this country. But I doubt that I could find you any more competent lawyer than Sandra O'Connor.

BILL MOYERS: Even liberal Democrats reacted favorably. Only the Republican right the denounced her. She had supported the Equal Rights Amendment in the Arizona Senate, and some of her votes seemed tolerant of abortion.

HOWARD PHILLIPS: On the basis of Mrs. O'Connor's public record in favor of abortion, the Conservative Caucus plans to oppose her confirmation.

SEN. STROM THURMOND: I now declare that she has been approved by this committee overwhelming. We now stand adjourned.

BILL MOYERS: 99 senators voted to confirm her. On September 25, 1981, Sandra Day O'Connor made history as she took the oath of office to become the 102nd Justice of the Supreme Court. She was 51, and had traveled a light year since her graduation from law school.

BILL MOYERS: What happened when you finished Stanford Law School third in your class, and went out to look for a job as a lawyer?

SANDRA DAY O'CONNOR: Well, there weren't any jobs in California in those days for women in the private sector as lawyers.

BILL MOYERS: Why?

SANDRA DAY O'CONNOR: None of the law firms, the major law firms in California, had ever hired a woman as a lawyer as of that date. They just never had.

BILL MOYERS: What made you audacious enough to think they would, in your case?

SANDRA DAY O'CONNOR: I wasn't sure they would. But there were notices put out on the placement bulletin board at Stanford Law School from the major law firms, asking for the better students to apply for interviews. And I did. I didn't get a lot of interviews, but I got a few, and only got one job offer.

BILL MOYERS: What was that?

SANDRA DAY O'CONNOR: Well, it was an offer to be a legal secretary.

BILL MOYERS: A legal secretary?

SANDRA DAY O'CONNOR: And I said that that wasn't really what I was looking for. But in those days, there were more opportunities for women in the public sector.

BILL MOYERS: So it was natural for you to think of public life instead of the law?

SANDRA DAY O'CONNOR: It was. And I became aware that there might be a vacancy on the county attorney staff in San Mateo County, California, which was near Stanford. I applied and was hired. And I was so pleased with that job. It was really delightful, and put me right in the middle of public service. As a lawyer for the county, I was doing civil war, not criminal. I was given some county agency, some clients, to represent. I liked the county attorney. I liked my immediate supervisor. And it was a wonderful experience. And that clearly influenced me, because for the bulk of my life, I've remained in the public sector.

BILL MOYERS: But weren't you just a little bit angry, as a woman, not to get a job because you were a woman.

SANDRA DAY O'CONNOR: Oh, Bill, I suppose I was. I don't remember, today, any bitter feelings, or anything of that's sort. I mean, it seemed to me they should be hiring women. But I went where people were hiring women, and got on with the rest of my life.

BILL MOYERS: And then you took off from that.

SANDRA DAY O'CONNOR: And I had one child and kept working, and then had the second child, and took five years off. And I did a lot of volunteer work during those years. And I was afraid I'd never get a job again, because I'd forget my law and a prospective employer would think that I didn't have any current skills. I was worried about it. So I tried to do law related volunteer work.

And I served as a volunteer for the juvenile court, and would sit for the judge as a referee in juvenile cases. And I offered to help write and grade bar exams for the state bar, and that give me a chance to research current legal things. And I took appointments as bankruptcy trustee. And I went on a county planning and zoning commission, and just did a variety of things to try to keep my hand in little bit.

BILL MOYERS: While you were also raising the children.

SANDRA DAY O'CONNOR: While I had the small children. And it worked out all right, because what it let me do was learn more about our community, and become deeply involved in our community. And at the end of five years, I was, frankly, so busy with volunteer activities that I decided I should go back to paid employment to get a little peace and quiet in my life. And I went out and looked for a job. And it was hard to get a job.

BILL MOYERS: Why?

SANDRA DAY O'CONNOR: Well, women we're still not sought after as lawyers. And I had been not actively practicing for five years. I finally obtained a job as an assistant attorney general for the state of Arizona. They didn't know what to do with me. And I went out on assignment to the Arizona State Hospital, which was the facility for the mentally ill in Arizona. And I set up an office out there. And the hospital wasn't sure what to do with me, either.

But I began to meet with the director and learn about their problems. And I started attending the hospital board meetings. And they did have many problems of trying to cope with these sometimes antiquated laws for admission of the mentally ill to the hospital, and laws protecting the rights of the mentally ill, and getting them released when they should be released. There were just all kinds of legal needs in that little community that was the institution of the state hospital.

BILL MOYERS: What did you learn about the system of justice while you were working on those cases?

SANDRA DAY O'CONNOR: Well, I learned that it needed attention at times, that if people could focus on the needs and the problems, that there were ways to improve things. And that's what I tried to do. Later on, when I became a legislator, in fact, I participated very actively in doing some rewriting of the laws pertaining to mental health treatment and care. And I did that with a much better understanding and background than I otherwise would have had.

And finally, the attorney general's office decided to bring me back into the fold of the main office. And I went down to the capital, to the attorney general's office, and then represented a wider variety of state clients, if you will. I did work for the state welfare department, and some litigation for them. And I represented the state treasurer and the state auditor, which was a wonderful assignment because I got thoroughly familiar with all the everyday problems of the state, and its financing, and its dealings on a day to day basis.

SANDRA DAY O'CONNOR: We had such a pleasant office in the attorney general's office. I liked the people I worked with. And we just had a wonderful experience. And you get a lot of responsibility in a public law office like that.

BILL MOYERS: And you gave that up for the rough and tumble of Arizona politics? I know something about Western politics. They're pretty tough.

SANDRA DAY O'CONNOR: Well, they aren't so tough in Arizona. At least, they weren't in the legislature when I ran. While I was in the attorney general's office, we had a woman state senator in my legislative district, and her name was Isabel Burgess. She was appointed by President Nixon to be a member of the National Transportation Safety Board. She left Arizona to come to Washington, and that created a vacancy in the Arizona State Senate.

I had been active before going to work in the attorney general's office as a precinct committeeman. And people in my legislative district were trying to decide who should fill the senate vacancy that was created. And I decided I would try to fill that vacancy, and did.

BILL MOYERS: Why? What appealed to you about it? Here you decided as a young woman to stay in the law and to be a lawyer. And suddenly, you took this plunge into those--

SANDRA DAY O'CONNOR: Well, I decided to be a lawyer in the legislature. I'd learned a lot about state government, and I had done legal work for state legislators as they had questions to give to the attorney general's office. And I thought, possibly, I could be constructive in that capacity. It also was not considered, at that time, a full time occupation. And I still had small children, so that have a little attraction for me, too.

And I've never worked for the money. I've never had to. I've been very lucky. But I've always tried to find things to do that gave me an opportunity to do something interesting. And I thought serving in the State Senate would be interesting, as indeed it was.

BILL MOYERS: And you were the first woman to become the leader of the majority.

SANDRA DAY O'CONNOR: A Senate Majority Leader.

BILL MOYERS: A Senate Majority Leader at the state house. Were you aware, at the time, that you were the first-- the first this, the first that-- that you had certain pressures on you as a consequence of that?

SANDRA DAY O'CONNOR: Well, yes, I knew all along. I had typically been the first in a variety of situations. But that began to seem not out of the ordinary. There weren't many in my law school class who were women when I went to law school. And in the Senate, there were a few other women, which was nice. And Arizona has been remarkably open, I think, to acceptance of women in politics.

BILL MOYERS: Where do you think you've got this sense of self-confidence, this sense of your own purpose, your own--

SANDRA DAY O'CONNOR: Well, now, I don't think that I had a strong sense of self-confidence. I don't think I ever did. In fact, I can remember, as a young woman, having a lot of feelings of uncertainty and insecurity. But nonetheless, I wanted to try.

BILL MOYERS: Where did you get that from? Where did that come from?

SANDRA DAY O'CONNOR: Oh. I think that came out of my background, growing up as I did on a cattle ranch, where one learns to work and do things for oneself.

BILL MOYERS: And not to feel inferior.

SANDRA DAY O'CONNOR: That's right. We were all part and parcel of the operation out there. And everyone had a role to play.

BILL MOYERS: You learned to drive a tractor, ride horseback?

SANDRA DAY O'CONNOR: Well, a car and a truck, and ride horseback, right. My companions as I grew up were the horses and the animals we had, and the cowboys that we worked with, and my parents.

BILL MOYERS: Were you discriminated against for reasons of sex?

SANDRA DAY O'CONNOR: Out there?

BILL MOYERS: Mmhmm.

SANDRA DAY O'CONNOR: Of course not.

BILL MOYERS: Never?

SANDRA DAY O'CONNOR: No.

BILL MOYERS: Never.

SANDRA DAY O'CONNOR: No.

BILL MOYERS: Did you ever have any awareness that there were limits on you because you were female?

SANDRA DAY O'CONNOR: I don't think so. In fact, my childhood ambition was to be a cattle rancher.

BILL MOYERS: Why did you decide to become a lawyer?

SANDRA DAY O'CONNOR: Well, I think, probably, because I had an inspirational professor in the undergraduate school at Stanford who was a lawyer. He taught a course, which I took. He also gave a seminar. It was really a seminar in ethics and religious thinking at his home, at night. And many of the students would participate in that. And I took that for a while. I just thought he was a remarkable man, and that if what made him remarkable was his legal training, that maybe I should apply to law school, which I did.

But when I did so, I wasn't sure that I would find it to my liking, or that I would want to, in fact, become a practicing lawyer. But I was admitted, a little to my surprise. In fact, I was admitted a year early, as my senior year in undergraduate school. And I took a year law school, and I really enjoyed it. It was so fascinating.

BILL MOYERS: It seems so unremarkable now, but you and I are about the same age. And I remember back in the 1950s that there were-- I can't remember one female lawyer. And not only that, but it hadn't been too many years-- 70, 75 years-- that the Supreme Court of United States, the court on which you now sit, had said it was constitutional for the state of Illinois to deny a woman admittance to the bar because she was a woman.

SANDRA DAY O'CONNOR: Myra Bradwell, back in the 1800s. That's right.

BILL MOYERS: What was it they said about her, that her mission, and her characteristics, and her peculiarities as a woman destined her to do something other than the law, and that the law should be left for the sterner sex?

SANDRA DAY O'CONNOR: That's right. Amazing.

BILL MOYERS: This court.

SANDRA DAY O'CONNOR: This court. You know, she finally was admitted to practice. But she never actually did, did you know that?

BILL MOYERS: No. Why didn't she? Do you know?

SANDRA DAY O'CONNOR: Well, I don't know. She was a scholar, in a way, and she helped edit and publish a magazine in the legal field. And she continued to do that work, even after she was finally admitted to practice.

BILL MOYERS: Do you feel any kinship with her?

SANDRA DAY O'CONNOR: I certainly do.

BILL MOYERS: You made the breakthrough that she was denied.

SANDRA DAY O'CONNOR: That she and many others would have enjoyed long before I came on the scene. In fact, I am, obviously, the beneficiary of the efforts that a lot of earlier, wonderful pioneer women made. I wouldn't be here if it weren't for what those other women had done-- not my accomplishments, but theirs that made it possible.

BILL MOYERS: What would you say to my daughter, who's 25, who has her husband, wants to have children, wants to have a career-- you've managed it so well, apparently. What would you say to those young women?

SANDRA DAY O'CONNOR: Well, I'd say that it isn't easy to have both a career and a family. I've worked very hard to do that. I've never had any spare time or free time that we call as a result. But it was worth it. And I love my family dearly. And I wouldn't have given that up for anything. But at the same time I wanted a career.

BILL MOYERS: So was there some formula? Was there some--

SANDRA DAY O'CONNOR: To be efficient and to work hard.

BILL MOYERS: And you picked the law you could practice when you could practice it.

SANDRA DAY O'CONNOR: Yes, I did the best I could as I went along. And I tried to find opportunities for some part time work. I mean, that's what women need, is a flexible work schedules. That's what I tried to get when my children were small. But it was hard, because when I got a job in the attorney general's office, I was lucky to have a job at all. And there was no possibility that they would have taken me on a part time basis.

And what I had to do was to work as hard as I could on a full time basis, and do such a good job that I became indispensable to that office. At least they thought I was. Of course I wasn't. But they thought I was. And then, after several years, I said, you know, I do need a little more time for my family. And do you think that it would be all right now if I worked maybe 2/3 time, instead of full time? And I'm willing to be paid for only half time. And that's the deal we struck. I was paid for half time. And I worked 2/3 or 3/4 of the time, so that I felt the state never lost any money on what I did. But nevertheless, I gained a little more flexibility to attend school programs and things like that.

BILL MOYERS: As a parent.

SANDRA DAY O'CONNOR: As a parent.

BILL MOYERS: And to be there when they needed you, but still to do the work that you could do.

SANDRA DAY O'CONNOR: Right.

BILL MOYERS: So what I hear you saying is that society needs to change to become much more flexible in order for women to have the variety of opportunities that they can fit into this--

SANDRA DAY O'CONNOR: Well, that's ideal. I don't know the extent to which country has done that yet. But I hear some women tell me that they've found ways to have flexible time. And I think that's great, when they can.

BILL MOYERS: Do you have any grandchildren?

SANDRA DAY O'CONNOR: Not yet.

BILL MOYERS: You have three sons.

SANDRA DAY O'CONNOR: Three sons. One married. No grandchildren as yet.

BILL MOYERS: Do you want to be grandma?

SANDRA DAY O'CONNOR: Oh I can't wait.

BILL MOYERS: If one of your grandchildren says, grandmother, why were the 101 Justices who preceded you on the Supreme Court all male? What does it say about the law that men could do this so long, could deny--

SANDRA DAY O'CONNOR: Well, it says that the wheels of justice grind slowly.

BILL MOYERS: But why?

SANDRA DAY O'CONNOR: And they do.

BILL MOYERS: Why?

SANDRA DAY O'CONNOR: That's the way it's always been. Justice never moves very swiftly. And I also would say that law, basically, is a reflection of the mores of the time. We have legislative bodies constituted to enact laws. And those legislators represent the will of the people, at least in a representative capacity. And they enact laws that reflect the thinking of the times and the mores of people.

And it isn't to be expected very often that either legislators or courts are going to jump ahead of the thinking of the masses of the people and adopt sweeping new changes. Sometimes it happens. Or sometimes legislators or courts will nudge people a little further along the way, and get a little ahead of public opinion. But it's the exception of the rule.

BILL MOYERS: So if law changes in response to political pressure, is the law then a transient reflection of people's prejudices?

SANDRA DAY O'CONNOR: Well, of course sometimes law incorporates and reflects prejudices, prejudices that sometimes aren't overt, things that we aren't even aware of, just a traditional way of thinking about things.

BILL MOYERS: I remember when President Reagan appointed you, the president of The National Organization of Women said this is a great victory for the women's movement. Did you see it that way?

SANDRA DAY O'CONNOR: Well, I saw it as a symbolic change of some significance to women. Because they do want, I think, to feel that the opportunities are there for them, at all levels of economic life, and political life, and social life in America. Of course they want that acceptance. And so as women we all tend to be happy and applaud when we see another woman achieve something of significant success.

BILL MOYERS: You said symbolic-- many of the feminists of the time wanted concrete and precise victories. In fact, they hoped you would bring to the court a sensibility that would see the broad range of women's needs as a group. But you have been interpreting your cases on the narrow tailoring of decisions. Is it really possible for there to be a feminine consciousness on the court?

SANDRA DAY O'CONNOR: Well, I don't know. It's very hard to know what is a feminine way of writing, or a feminine approach. If we knew that, we'd know a lot.

BILL MOYERS: Well, I think what they mean by it is we would see the broad needs of women as a group, not just the individual cases that--

SANDRA DAY O'CONNOR: Well, I hope we all see that on this court. It doesn't take just a woman member to be able to perceive the concerns and the problems and the issues. And the court itself has then responsive, I think. If you'll look back over the last 20 years or so, it's been quite responsive.

BILL MOYERS: Am I wrong in thinking that your experiences in the politics and law of Arizona more strongly shaped your constitutional views than being a woman?

SANDRA DAY O'CONNOR: Oh, I don't know. I leave that for other people to say. I don't know.

BILL MOYERS: But as I read your opinions I come, time and time again, upon your reference to the states, your feeling for the states, your sense of propriety about the states, much more so than I do any, what might be called, feminist insights.

SANDRA DAY O'CONNOR: Well, all I can say is that the bulk of my legal experience was in state government.

BILL MOYERS: You can find in Justice O'Connor's opinions the influence of those years in Arizona politics and law. She served in all three branches of state government-- assistant attorney general, Senate Majority Leader, the first woman elected to that post in any state, and both a trial and appellate judge. So she brought to the Supreme Court a deep sympathy for the role of state courts, and the bias against federal intrusions into a state's independence. She declared herself for judicial restraint, the notion that the court should defer to the political branches of government, and not seek to find in the Constitution new commands that overturn established doctrines of law.

She soon had a chance to set forth are strong views on federal-state relations. The court's majority ruled that the state of Mississippi must obey a federal agency on pricing policies to encourage energy conservation. Justice O'Connor attacked the majority opinion. "It undermines the most valuable aspects of our federalism," she wrote. "State legislative and administrative bodies are not field offices of the national bureaucracy." Rarely does she miss an opportunity to press that belief on the other justices, sometimes provoking a round of bristling opinions.

BILL MOYERS: Ironically, few of her decisions these past six years have disappointed the New Right conservatives who opposed her nomination. On civil rights, generally, on family and parental rights, on busing, obscenity, prayers in school, and the death penalty, she is at home in the court's new conservative center. But her opinions are seldom doctrinaire. She supports the death penalty, including its use for all participants in a felony that results in murder, even if only one of them actually did the killing. But she found it unconstitutional for a state to send a convicted defendant to jail simply because he is too poor to pay a fine.

SANDRA DAY O'CONNOR: Especially on the rights of women and affirmative action, Justice O'Connor has increasingly struck an independent course. She upheld a law protecting the benefits of employees physically unable to work because of pregnancy. She wrote the majority opinion when the court ruled that men could not be excluded from a state supported nursing school for women in Mississippi. She said the school's policies fostered outdated stereotypes of women as the inferior sex, and as nursing as a career for women only.

BILL MOYERS: More recently, in the court's first specific ruling on affirmative action for women, the Justices voted six to three that employers may promote women ahead of white males. Justice O'Connor endorsed the court's judgment, but refused to join the majority opinion, saying it was too broad and ill defined.

BILL MOYERS: You wrote in that case that a government employer could grant preferences in hiring and perhaps promotions as a quote "narrowly tailored remedy for the employer's past discrimination." What's meant by "narrowly tailored remedy?"

SANDRA DAY O'CONNOR: Well, the court hasn't fleshed that out, of course, and it will have to be fleshed out over time. But it's a remedy that doesn't impose too great a burden on innocent employees.

BILL MOYERS: You mean people who have not discriminated?

SANDRA DAY O'CONNOR: Right.

BILL MOYERS: So if I discriminate, you expect me to correct my record, but you don't expect me to correct someone else's record.

SANDRA DAY O'CONNOR: Well, that, and also the fact that whenever some affirmative action is taken to help employee A, you may hurt at the same time employee B. And by narrowly tailoring the remedy, the court is going to have to be extremely careful to be sure that the means chosen to remedy discrimination are not excessively burdensome on the other innocent employees. And that will have to be worked out over time. The problem I saw in some of these cases is that, among other things, employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent discrimination.

BILL MOYERS: Explain that to me.

SANDRA DAY O'CONNOR: If an employer has a situation where it is clear, by virtue of the statistical imbalance in the job classification you're looking at, that the imbalance is so great that a pattern and practice discrimination suit could be filed against the employer. And the employer could be liable to the minorities for apparent discrimination on the one hand. And on the other hand, the employer may be liable to non-minorities if affirmative action is taken. So that's kind of a tough road to walk, isn't it?

BILL MOYERS: Yes. And you looked at the facts, and said that this particular employer had 240 some odd positions without a single woman in it.

SANDRA DAY O'CONNOR: Right.

BILL MOYERS: And you said--

SANDRA DAY O'CONNOR: A case of apparent discrimination, such as would support a pattern and practice discrimination suit under Title VII.

BILL MOYERS: There was a lot of relief expressed in the business community when this case was handed down, saying, well, finally the court has resolved the issue of affirmative action, and we can put the controversy behind us, and get on with doing what we think we ought to do. Do you think that you've pretty well laid to rest the affirmative action controversy for a while?

SANDRA DAY O'CONNOR: Oh, I don't know. I would assume that additional cases, and controversies, will emerge in the future. They have a way of doing that.

BILL MOYERS: This court has changed its mind on issues 130 times, of critical issues.

SANDRA DAY O'CONNOR: Well, it isn't that so much as that in any legal issue, when the court hands down a ruling, lawyers are clever and intelligent people, and they'll find ways to pose new problems that are created by virtue of the resolution you've just handed down to solve another problem.

BILL MOYERS: Nothing's ever settled on this court for sure, is it?

SANDRA DAY O'CONNOR: No, it's never an absolute end to any issue. It's more a process of a continuing dialogue.

BILL MOYERS: Dialogue-- between?

SANDRA DAY O'CONNOR: Between the court and the Congress and the nation as a whole.

BILL MOYERS: Justice O'Connor will not discuss the controversial issues that keep coming to the court, abortion above all. She says, as do other Justices, that it would be improper for her to do so. But one of her major opinions on the court has caused alarm among supporters of abortion about how she might rule on future cases.

During her confirmation hearings in 1981, she had this to say--

SANDRA DAY O'CONNOR: I do not believe that as the nominee I can tell you how I might vote on a particular issue which may come before the court, or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the court again.

VOICES: What do we want? Free choice! When do we want it? Now! What do we want? Free choice! When do we want it?

VOICES:Abortion is murder! Abortion is murder! Abortion--

BILL MOYERS: The court had triggered a stormy controversy with the decision on Roe v. Wade in 1973, ruling that a woman has the fundamental right to an abortion during the first three months of pregnancy, the first trimester. The state could only outlaw abortion altogether in the third trimester, when the fetus is considered viable, when it can live outside the womb. In 1983, in a case from Akron, Ohio, the court reaffirmed Roe v. Wade. It struck down regulations past by the city council that would make abortions more difficult to obtain.

MALE VOICE: The court has never said that you may not regulate abortion in the interest of the life or the health of the unborn child. It's just never faced that question.

BILL MOYERS: Feminist leaders claimed another victory for women.

FEMALE VOICE: I think what they were hoping to use Akron as the precedent for the rest of the nation.

BILL MOYERS: But the woman they had once praised disagreed. Justice O'Connor argued that because the Akron laws did not impose an undue burden on the right to seek an abortion, the court was obligated to uphold state law. And she wrote what some legal scholars say could provide the intellectual basis for ultimately overturning the right to an abortion.

"Roe v. Wade," she said, "is on a collision course with itself." This is from her opinion. "Just as improvements in medical technology inevitably move forward the point at which the state may regulate for reasons of maternal health, different technological improvements will move backward the point of viability." And in the final sentence of her dissent, she wrote, "I believe the State's interest in protecting human life exists throughout the pregnancy."

BILL MOYERS: Nothing you've written on this court has so caused concern than your statement that Roe v Wade is on a collision course with itself. Meaning that what the court has decided may come back to be decided again. How's that going to happen?

SANDRA DAY O'CONNOR: I just think we probably have not seen the end of cases in this area. Cases in one subject area tend to come up with some frequency until the issues are thoroughly threshed out and resolved. That's true in every area.

BILL MOYERS: You said in your hearings that you found abortion morally repugnant. Doesn't that mean you have to vote against it, when it comes to this court?

SANDRA DAY O'CONNOR: No. Just like any other case, you take the case, and see what the issue is. More often than not, it's a state statute that we're reviewing to see whether it passes muster under the federal Constitution. And you look at the particular statute, look at the case, look at the issue, look at the facts, and try to apply them.

BILL MOYERS: So even if you personally disagree with what you think the law says should be the ruling, you're gonna rule that way?

SANDRA DAY O'CONNOR: Sure.

BILL MOYERS: You're not going to declare something legally improper because you find it morally improper?

SANDRA DAY O'CONNOR: No. I mean, you have this overriding obligation up here to enforce and apply and support and defend the Constitution. That's what we're here to do.

BILL MOYERS: But you see, you are the Constitution.

SANDRA DAY O'CONNOR: We're not the Constitution.

BILL MOYERS: You're telling me what the Constitution is. I mean, if you say that women have a right to an abortion, the Constitution says that, backs you up. If you take it away and say they don't, we all live with it. You are the Constitution.

SANDRA DAY O'CONNOR: Well, we're certainly called upon to interpret it, aren't we?

BILL MOYERS: What's the hardest thing about interpreting it?

SANDRA DAY O'CONNOR: Well, some cases are more difficult than others, simply because the precedents aren't clear, or the court hasn't resolved the issues in the past, or something of that sort.

BILL MOYERS: But once you declare something in an opinion as strongly as you did in the Akron case, where you ended your very discursive opinion saying that the state has an interest in pregnancy from beginning to end, haven't you decided the next cases?

SANDRA DAY O'CONNOR: Well, I don't know what the next case is going to be.

BILL MOYERS: So you keep an open mind--

SANDRA DAY O'CONNOR: That's right.

BILL MOYERS: --to what the facts of the case are.

SANDRA DAY O'CONNOR: That's right.

BILL MOYERS: On every case?

SANDRA DAY O'CONNOR: I try to do that, yes indeed.

BILL MOYERS: That's what's meant by a narrow tailoring to the facts of the case?

SANDRA DAY O'CONNOR: Well, I think we are limited under the Constitution to cases of controversies. And we take 'em as they come to us.

BILL MOYERS: How do you decide which cases?

SANDRA DAY O'CONNOR: We have no hard and fast rules about that. And we vote--

BILL MOYERS: Oh, you do?

SANDRA DAY O'CONNOR: --on which cases to take.

BILL MOYERS: What're you looking for when you are choosing those cases?

SANDRA DAY O'CONNOR: I'll tell you I look for. First of all, I keep in mind what I think the role of this court is. And I think the role of this court is to try to develop a reasonably uniform and consistent body of federal law. I think that's why we're here. And in deciding what cases to take, we look at the importance of the issue, the extent to which that issue is going to keep coming up again around the country, and we look, very importantly, at the extent to which other courts around the country have reached conflicting holdings on it.

We don't sit at this court just correct what we think might be an error made in the courts below. We're not a court to correct errors. And if all courts around the country have taken an issue, and they've all reached the same holding on it, we're not apt to take it. But if there's conflict out there-- so in state A, if you have this case arise, one result would obtain, and in state B, a different result. That sometimes is a conflict that's intolerable under our federal system. And then we have to take the case.

BILL MOYERS: Is that for so many abortion cases keep coming up? I mean, there's so many different judgments made out in the states. And they keep looking for somebody to resolve the--

SANDRA DAY O'CONNOR: Oh, I suppose that's part of it-- conflicting holdings. And issues come in bunches, too. It's curious, but the court system will see, one year, a great batch of Fourth Amendment search and seizure cases of a particular type. And another year, you'll see a great batch of Fifth Amendment self-incrimination cases, so forth. They do seem to come in bunches.

BILL MOYERS: There must have been some personal joy on your part to be part of a court that says, for example, among other things, that pregnant women who are working should get from their employers some job protection when they are physically unable to work because of their pregnancy.

SANDRA DAY O'CONNOR: Well, Bill, now, that was not a policy decision made by the court. And that's the common mistake that I think people make when they look at decisions from this court. We didn't decide the case on whether it's good public policy to provide for pregnant women. That policy choice is the one made by the California State legislature, and that's exactly where it should be made.

BILL MOYERS: And your decision was?

SANDRA DAY O'CONNOR: Our decision is whether California statute has been preempted by federal law. And we said no, that it wasn't, that the California law and the Federal Pregnancy Discrimination Act could coexist side by side, and both be implemented.

BILL MOYERS: And whether or not the California statute fitted the Constitutional schema of things?

SANDRA DAY O'CONNOR: No. The only constitutional issue involved is out of the supremacy clause. If Congress passes a law on a subject where the Constitution gives Congress power to pass a law, and if Congress has occupied the field of the legislation, or has otherwise indicated that it intends its law to supersede state law on the subject, then a state law conflicting with the federal law must fall, under the supremacy clause of the Constitution.

And the issue in the Pregnancy Discrimination Act case was simply the issue of whether Congress, in its enactment, had preempted state legislation of the type passed by California. And we said that the two could co-exist, that California's law was not preempted.

BILL MOYERS: You once wrote an opinion in which you said the Constitution has created a federal system in which the federal government is indestructible and the states are indestructible. But doesn't that make it very hard to sort things out.

SANDRA DAY O'CONNOR: Sure. There are continuing problems of federalism that we have. But that indestructibility quote is one that I want to find for you, because--

BILL MOYERS: I should never interview a Justice who knows her precedence.

SANDRA DAY O'CONNOR: After the Civil War, in the case of Texas against White, this court said, "The Constitution looks to an indestructible union composed of indestructible states." That was the quote from Texas v. White. And that was a very brave statement by the court, of course. And then in the process of deciding that case, the court held that no state has the power under our constitutional system to secede from the Union. Texas had tried to secede at one time, you know. Being a Texan, you'll remember that.

BILL MOYERS: I know that.

SANDRA DAY O'CONNOR: But there is certainly no question that the expansion, over the years, of federal power has correspondingly decreased state power. And that occurs, of course, by virtue of the supremacy clause.

BILL MOYERS: Giving?

SANDRA DAY O'CONNOR: Under the Constitution, if Congress has been empowered to act, and if it acts, then its law is supreme. It is the supreme law of the land. And it takes precedence over any conflicting state law. So as you see the power of federal government expand, you see a corresponding diminution in the any reserve power of the states.

BILL MOYERS: Does that concern you? Or have you been deeply concerned about the growth in the--

SANDRA DAY O'CONNOR: Well, it's kind of considerable interest to me, because I'm a product of state government. And I think that it is appropriate that we try to preserve strong and capable state governments. Because I still tend to believe that the best government is that government closest to the people. And that and in terms of enacting general police power legislation, general regulatory schemes, that local governments are probably more in tune to local needs, and better able to do that. But this problem of federalism is one that emerged in the first years after we got a constitution.

Let me read you something Thomas Jefferson had to say before his death. He could see, and I quote, "the rapid strides with which the federal branch of our government is advancing toward the usurpation of all the rights reserved to the states, and the consolidation to itself up all powers, foreign and domestic." So that concern isn't new, is it?

BILL MOYERS: Well, isn't there another reason, too, Justice O'Connor, that the federal powers have grown, particularly in the last 40 and 50 years. And that is because this state government, which you said often works best because it's closer to the people, worked in malicious ways.

SANDRA DAY O'CONNOR: Oh, absolutely.

BILL MOYERS: Involving both blacks and women. I mean, I wonder-

SANDRA DAY O'CONNOR: Absolutely.

BILL MOYERS: --what would have happened to black rights if Justice Johnson, Frank Johnson down there in Alabama, hadn't issued those judicial decrees against Governor Faubus and Governor Wallace.

SANDRA DAY O'CONNOR: Well, in the early days of this country, before the Civil War, states were asserting their reserved powers as a means of enforcing slavery.

BILL MOYERS: And it was states keeping women from becoming lawyers.

SANDRA DAY O'CONNOR: And Congress was refraining from exercising its commerce power to prevent states from regulating slavery.

BILL MOYERS: Why should people out there care?

SANDRA DAY O'CONNOR: Care about the Constitution?

BILL MOYERS: About all of this.

SANDRA DAY O'CONNOR: Because it touches all of our lives, every day. It touches every one of us, you, and me, and everyone in this country. We've been talking about very limited things, but these are basic-- the extent to which Congress has power to take action touches all of us. Did Congress have the power to enact Social Security legislation? We now think that it did, don't we? And that touches a lot of people. Did Congress have power to enact the Sherman Antitrust Act? Now, there were severe debates in Congress back in the late 1800s when it connected Sherman Antitrust Act over whether Congress had that power under the commerce clause. And it was decided that it did. But think how that shaped the economic life of this country. And did Congress have the power to regulate organized labor? It was thought for a while perhaps it didn't. And all of these things have shaped our lives, haven't they? I haven't even mentioned the basic liberties and guarantees of the Bill of Rights. We haven't even talked about that.

BILL MOYERS: How would you like for us to think of the Constitution, in this year of its bicentennial?

SANDRA DAY O'CONNOR: As a vital, living, important part of us. It's our national charter. it's the underpinnings of the things that happen today. In the Bill of Rights, it is our guarantee, that by state or federal action, that some of our precious liberties will not be infringed. And in terms of what government can do for the people, it is the source of authority, or lack of it, that's found in the Constitution. These things touch all of us.

BILL MOYERS: What do you think of the wisdom of the Founding fathers?

SANDRA DAY O'CONNOR: Well, they developed a wonderful system of government, with its separation of powers and its checks and balances. And in their wisdom, they wrote a relatively simple document. Look at this little thing-- with all the 26 amendments, and the footnotes, 32 little pages here.

BILL MOYERS: What do you think was the underlying value they were trying to establish?

SANDRA DAY O'CONNOR: Well, a workable system of government to try to bring some unity to these states, who otherwise would have just chewed each other up with their barriers to commerce and economic power. We wouldn't have had an economically workable country without some federal system to erase the tariffs and the barriers to trade and commerce. And I'm sure that was an important part of what they had in mind. But they also had in mind keeping alive the state governments, and creating a federal system, and a federal government, of limited powers, and a system of government that has served us well.

There were mistakes made. There have been mistakes made on this court. And there have been contradictory rulings over the years by this court, and contradictory principles. But nonetheless, what emerges is a strong government, and a workable one. And what emerges is a meaningful Constitution. And we have three powerful branches of government as a result.

BILL MOYERS: Do you think those Founding Fathers would be turning over in their grave if they heard these words coming from a woman, if they knew that the law of the land was being interpreted by a woman?

SANDRA DAY O'CONNOR: Well, I think they'd be pretty surprised. Even Mr. Jefferson, who was considered somewhat of a liberal, or a free thinker, indicated on a number of occasions that he didn't think the nation was ready to see a woman in public office, nor was he.

BILL MOYERS: That's right. So they would be surprised.

SANDRA DAY O'CONNOR: I think they would.

BILL MOYERS: I was struck this morning walking in by those huge words above the Supreme Court's entrance-- "Equal justice under the law." what's the hardest thing that you've discovered about trying to decide what equal really is?

SANDRA DAY O'CONNOR: Well, it's an inherently difficult task. These cases that we get here are decided, sometimes, on such fine lines you think you're dancing on the head of a pin. It can be very difficult. And you've had, now, as a result of all you've been doing, a chance to read a number of opinions of the court. And you can find you can read the majority opinion and feel persuaded, and then go on and read the dissenting opinion, and maybe change your mind.

BILL MOYERS: Mmhmm.

SANDRA DAY O'CONNOR: These things are really difficult issues sometimes. You can write persuasively on either side.

BILL MOYERS: On either side. And don't you also have to write very swiftly?

SANDRA DAY O'CONNOR: Well, we are under pressure to get the work done during the term. We certainly are.

BILL MOYERS: After you've heard an oral argument, when do you get together and vote?

SANDRA DAY O'CONNOR: Well, normally during that week in which the oral arguments are conducted?

BILL MOYERS: That very week?

SANDRA DAY O'CONNOR: We get together that same week. We'll sit around a conference table in our conference room behind the courtroom, and just go around the table. And each Justice explains how the Justice thinks that case should be resolved, and how, and why.

BILL MOYERS: Are you deferential to each other?

SANDRA DAY O'CONNOR: Yes, very much so.

BILL MOYERS: Polite?

SANDRA DAY O'CONNOR: Very courteous, always. I think every Justice holds every other Justice in very high regard, and has great respect, one for the other. It's a very civil group.

BILL MOYERS: Some of the opinions that go back and forth-- I mean, I've heard of dueling banjos and dueling swords, but some of the opinions are dueling as well.

SANDRA DAY O'CONNOR: The battle of the footnotes and so forth.

BILL MOYERS: The battle of the footnotes?

SANDRA DAY O'CONNOR: Yes.

BILL MOYERS: Are you writing those opinions for your other Justices?

SANDRA DAY O'CONNOR: Yes, quite often. The real persuasion around here isn't so much done at our oral conference discussions as it is in the writing. And I was a little surprised by that when I first came here. But having been here awhile, I understand more and more why that's so.

BILL MOYERS: Why is it?

SANDRA DAY O'CONNOR: Because I think when you have time to sit down with pen in hand, and to reflect on these things, and to spell it out, in writing, with all your authorities mustered and set out, then you can be more persuasive than you could just giving oral thoughts off the top of your head at a conference discussion. And that's why the real persuasion is done in the writing.

BILL MOYERS: Do you have another Justice in mind sometimes when you're actually--

SANDRA DAY O'CONNOR: Absolutely. Sometimes you do.

BILL MOYERS: You're trying to reach his mind.

SANDRA DAY O'CONNOR: Sometimes. When know that's the key shaky vote, you'll try to say something that might attract that Justice.

BILL MOYERS: Do you frame your language with him in mind?

SANDRA DAY O'CONNOR: Sometimes.

BILL MOYERS: Your sentences, your [INAUDIBLE].

SANDRA DAY O'CONNOR: Sometimes.

BILL MOYERS: But they sometimes antagonize some of your colleagues, don't they?

SANDRA DAY O'CONNOR: Well, that could happen, too.

BILL MOYERS: I mean, one of your brethren scolded you a little bit for some of your language.

SANDRA DAY O'CONNOR: That can happen, too.

BILL MOYERS: Did you answer him back?

SANDRA DAY O'CONNOR: Oh, I think there have been occasions when I've taken a stab at responding, and others when I don't.

BILL MOYERS: But do you ever pass in the hall and acknowledge those dueling opinions.

SANDRA DAY O'CONNOR: No, not really. No.

BILL MOYERS: You just know they'll be read.

SANDRA DAY O'CONNOR: I know they'll be read.

BILL MOYERS: You're letter's not going to be unopened.

SANDRA DAY O'CONNOR: That's right. Not this level. We read each other's mail, with a lot of care.

BILL MOYERS: Do you like the job?

SANDRA DAY O'CONNOR: Oh, it's a fascinating job.

BILL MOYERS: Well, what's fascinating about it?

SANDRA DAY O'CONNOR: Because we have all these incredible issues to decide. The breadth of the issues that this court decides are just astonishing. We have constitutional cases. In one month we're apt hear something on the Fourth Amendment, and the Fifth Amendment, and the First Amendment, and the commerce clause. And we have congressional statutes to interpret and apply-- the ERISA statute, or the OSHA statute, or the Age Discrimination in Employment statute-- a broad range of things. We have federal regulatory action to review. Sometimes we look at international treaties, sometimes federal common law.

SANDRA DAY O'CONNOR: The array of issues that come to this court for decision is astonishing, and you have all this diversity. We never get an issue that isn't pretty tough to decide, so it's a challenge. And I guess I have always liked to have a job with some responsibility attached. And this has it.

BILL MOYERS: This has been a conversation with Supreme Court Justice Sandra Day O'Connor in search of the Constitution. I'm Bill Moyers.