Really is so, the Court Decides about 80 cases a year. But and about 75 of them need to be decided but theyre not the reason the court is such a powerful institution and not the reason people say that about who you should vote for in the president ial election. In any given term theres typically five or six cases really the reason we care about the court. And those are the cases that have truly Significant Impact on our politics, on our society, on our government. There are also, though, typically cases, the reason theyre so hard and part of the reason that makes them so important is the law runs out before you get to the decision. So how do we justify giving so much power to what amounts to a kind of monarchal institution in cases like that . And its not actually so easy to do if you think about it. But one of the ways we do it is by who we appoint. Who we give that kind of power to. So we look ideally for people who have experience in politics, who have been in a position where theyve had to make some of these really hard decisions with responsibility for the consequences of those decisions. And then in the ideal world, we remove them from politics and the way we structure the court and a have a wisdom they can bring to bear on those cases when the law runs out. So the last little bit when the legal justifications might take you one way or another they can bring them to bear and exercise judgment which is why we call them judges. So in those five or six cases every term its that kind of experience that matters. If you look across American History, we used to routinely appoint justices who had that kind of experience. We had justices who had been governors or senators or cabinet officials, people who had really been in the heat of politics, in important political decisions, sometimes at the state level. Sometimes at the federal level with real responsibility for the consequences of what they did. And if you think about it, Justice Oconnor was really the last justice of that ilk. And you see it reflected in her decisionmaking. Part of the reason, by the way, its because the court has become so powerful. It becomes really difficult to get anybody through the appointments process we have now if theyve ever done anything in life. But at least when she was appointed and for all sorts of reasons we heard on the first panel they went to somebody who was quite unconventional but somebody whose important experience for the court was not her experience as a state court judge but as a state legislator, as the leader of her party and the state as someone who had that experience in politics. So what happens when the law runs out is you can see that reflected in Justice Oconnors opinions. And you can see it not just in what she decided but in how she decided it. Of course, no one gets to see how a justice decides their cases better than her law clerks. Not even her fellow justices got to see as close or as much of what made the justice who she was as a justice. Clerking is a really unique job. Its not really a job. Its closer to a discipleship than it is to a regular job. You work long hours, and i can tell you the oconnor clerks worked longer hours than most of us. You have incredibly close contact with this person. You spend your time thinking not about how you can influence them because very few of us had the kind of arrogance, particularly at the age of 26 to want to push the justice in a different direction than he or she wanted to go, but really trying to understand what it is that the Justice Needs or wants or is trying to do and to fulfill those needs to provide the research, to provide the thinking and argumentation that helps the justice shape her views. So who better to give us a sense of what it was that made Justice Oconnor the justice she was, who better than those particularly in those key cases and important cases who did the work with her. And so with that, let me bring on the next panel. I think youll be really interested to hear some of the firsthand experiences of the people who had the opportunity to work as closely with Justice Oconnor as only her clerks ever did. [ applause ] please welcome to the stage our moderator, mr. Jeffrey rosen and our first panel of distinguished speakers. Chancellor kent syverud, ms. Marci hamilton and ms. Julie osullivan. [ applause ] ladies and gentlemen, welcome to our panel about the firsthand experience of clerking with Justice Oconnor. Were honored to have three extraordinarily distinguished scholars who also clerked with Justice Oconnor during her early years on the court, during the 8485 and 89 terms. So i think we should begin by asking, what was it like to clerk with her as she was still adjusting to the extraordinary role of being the first woman on the supreme court. Chancellor, well begin with you. Sure. She was the most famous woman in the United States at the time. She drove a honda civic herself. She was incredibly demanding and incredibly supportive as well. What a blessing that was to have early in your life to have a boss who insisted of the best of you but also knew you had a family. So id say it was exhausting and exhilarating at the same time. Marci hamilton, professor hamilton, you talked about how she taught you to be a professional. Tell us about that. So, you know, the thing about clerking for Justice Oconnor is that you learn how to be incredibly honest while youre smiling and you learn not to put in writing things you dont want to read again. Ill never forget in the abortion cases, i was very unhappy with Justice Scalias treatment of the justice and i really wrote it up. And i wrote a response that i we nailed him. I mean, that was my plan. And i hear marci. So i went across by the secretarys desk and i go into her office. She goes, we dont talk like that. I said, well, i think we should. She said, no, no, take it out. So i went and took out all the strong verbiage and left just the facts, and she was very happy with that. But i learned a really good lesson where you can really, really disagree with someone, but you dont have to be disagreeable. And thats an amazing skill that someone gets early in their career. I have to ask, because after Justice Scalia said that one of her opinions cannot be taken seriously, she famously said, sticks and stones may break my bones, thats probably not true. Did she find Justice Scalias barbs to be a little sharp . You know, she found them annoying and really capable of being ignored. Shes one of those people that understood if you do not give back to the person thats trying to taunt you, you can really drive them crazy. She was gifted at it. She told me one time she had figured dealing with difficult people. She had four levels of dealing with them. You do this and try humor at this level and do this at this level. And i was like, oh, my god, i should go get some notes because im never going to remember this. She was so good with people. Excellent advice. Professor sullivan, she famously made chili and had these saturday sessions. Give us a sense of what it was like to have Justice Oconnors chili and to discuss cases at the same time . To give you a sense of how things worked. I was a fifth year in. These guys were a little earlier later. You know she came from the state court of appeals so she didnt have a lot of experience in federal law or constitutional law. And we were hearing we, listen to me. I wasnt confirmed. We were the court was hearing 150 cases a year plenary. Now they hear about 75. So we were doing the serve pool memos. She wanted every case to have a bench brief, and we were doing the opinions, majorities, dissntsdi dissents, denials. It was a punishing schedule. And maybe you remember the computer was only up until midnight from 10 to 10 00 on weekends and we were there every second the computer was up. And so what we would do is write our bench memos, and then we were expected to read each others bench memos for maybe ten cases on friday night. Does this ring a bell . And wed get together saturday morning and the justice would make her threealarm tacos or chili. Im a girl from new jersey. I did not know from tacos. I was just like, what is this . Anyway was it really spicy . It was good. I mean, once you got past the, you know it wasnt the tacos that were hot. It was the discussion. Well, all right. So i was usually in the hot seat. The justice, in my experience, tended to hire someone who was a liberal, a real conservative, and it didnt work every term like this but it was somewhat intentional. And sort of two people in between. I was clearly the liberal and i shared my office with a conservative who was the real conservative. And we had a wonderful time because we both smoked and drank too much diet coke. I mean, tab and but anyway, so we got along famously, but i did get beaten up pretty thoroughly almost every saturday, and i was only 27 years old, which was i look back on it and think, what were you thinking . You know, you had some nerve. So i was a little insecure and blah, blah, blah. But those sessions, she let us spar and didnt really enter into it until the end when she gave you a sense of what she wanted. She was sincere about listening to a 27yearold tell her about the cases. We viewed our role not as telling her how to decide them but to make sure she could make the best decision possible. We were honest about what the cases said. We were honest about what the brief said. We might present our point of view, but our job was to protect her and to make sure she made the best decision. Which included, of course, telling her how she decided previous cases she had. Thats fascinating. That vision of her listening to the best arguments on both sides and deliberating and making up her mind is very powerful. Chancellor, can you take a particular case and give us an example of how that played out and take us into her decisionmaking process . So, i guess i would take a case that i long after i clerked which was planned parenthood v. Kc. She genuinely listened to everyone, and she genuinely read everything. You had to give her everything you cited and everything you chose you read that you chose not to cite. And marked with the pages. So these huge book carts youd roll in with when you were preparing both for argument and then later with an opinion. Planned parenthood v. Kc was i talked with her a lot about. That was 1992. And the clerks were very sharply divided, as maybe youll hear later. And i guess id say she was able to when she had to struggle between her belief in the rule of law and her intuitions from her own background and experience were the hardest cases from her, and i would say that was about the hardest. Professor hamilton, we all want to hear about kc and that was obviously such a defining case for her. Can you shed any insights on that or any other reproductive rights cases . Well, i think i would compare the hogson case which was our term and its the one case where Justice Oconnor would vote to invalidate an abortion regulation. And the year i was clerking was one of those years when there was a very strong conservative ka ball of law clerks that snuck around and thought they were deciding all the cases for the justices. And there was a lot of fighting over this case. And a lot of unhappiness that Justice Oconnor was going to go the way of saying, you couldnt say that two parents both have to give consent for a teenager to be able to get an abortion. But she was just a stalwart. She didnt really care what was going on in the halls. She did call me in one time and ask me about it, and i said, well, im going to be honest with you. Im not being invited to these meetings. There arent any women at these meetings. And she did not like that. So in the end, she just did what she wanted to do. And we agreed it was, by far, the best oral argument of the term. Absolutely fabulous oral argument. Her kind argument where the litigator for the reproductive rights project was saying things like, the answer to that question is on page 152 in the second paragraph. Oh, and the answer to that one is on 845. And you could just see her going check, check, youre right. Okay. So it was an amazing year, but it is the only year that shes voted that way. Wow. Professor sullivan, there were two aspects of kc that were so distinctive to Justice Oconnor. Her concern about the spousal notification provision, which she thought was paternalistic violation of gender equality, and the undue burden test which was so quintessentially central to her jurisprudence. Can you cast light on those or on reproductive rights cases that you had during your term . My we did not have reproductive rights cases my term, and we also didnt have the unpleasantness because all our death cases were held for a case. And the death cases tend to bring out when youre asked to stay an execution tends to bring out just the really visceral feelings of the clerks, and it can get really ugly. So our year was pretty benign. We had some reasonably important cases. We had an affirmative action case where she weighed in on whether affirmative action, whether strict scrutiny should apply when youre advantaging africanamericans. Tell us about that. That was very difficult. And she she really struggled. But one thing about the justice. People talk about her discipline and work ethic. What people dont realize is how incredibly bright she is. It always amazes me, and i think its because her character was such, she made it look easy. But here she is, brandnew. Shes deciding these abortion cases a couple years in. Were wheeling in like tenfoot tall stacks of books, right . And she is doing that between exercise class at 8 00 a. M. And going out with john dancing at 7 00. I mean, i really, literally dont know how she did it. But its important because shes a quick study and a hard worker and decisive. She gave it her best shot and did not look in the rearview mirror. That decisiveness is so striking. She had a pillow at one point in her chambers that said maybe an error, but never in doubt. And she heard the best arguments on both sides but made up her mind and didnt look back. At the same time, she was such a model, she is such a model of thoughtful moderation, of balancing competing interests in the madisonian spirit in a way that seems so rare and precious today. How can you balance that moderation and the decisiveness . She was a common law judge and thats hard to for people today to understand in a polarized era where people are playing to get their books, their cases in the textbooks. She wanted to decide things on the facts and the messy facts, and shed seen as a politician, as a trial judge, she had seen how messy the facts are. And then the second thing just to say is that she was often in doubt. She knew they were hard cases. So she wrestled really hard with them, but when she decided, she didnt look back because she had another case to deal with. And she really pushed me hard to say the time to worry and the time to have doubts is before you make a decision, not afterwards because if you wait until afterwards, then youre doing a disservice to the people in the next case. So she was capable of doing really hard things and moving on cheerfully and positively which was not by nature in my upbringing, so it was a good lesson to me. Common law judge. Thats a resinent phrase. What did it mean for Justice Oconnor. What considerations moved her as she balanced competing features and, again, give us specific examples. She was really an incrementalist in a lot of ways. And she was too humble to think that she could decide an issue for all time with one case. And she was very, very respectful of the case and controversy requirement. And i really didnt come to truly appreciate that honestly until i started comparing her approach with her dear friend Justice Scalia. And you know, for Justice Scalia, it was kind of zeus handing the truth down on from high. And it was supposed to be the truth for the next 20 to 30 years which has kind of turned into the courts way of operating. If they decide a case theyll not take it for a very long time. She was much more willing to say, this is the four corners of this case. Heres how i would decide this case. And i am not going to pretend i know whats the next case. So in that way, i just found her to be just deeply fair and deeply concerned about the case in front of her, not the horizon and not, you know, how she was going to go down in history. I think its been unfair that shes been characterized as being the swing vote. I heard some characterizers wanting to be the fifth vote. That couldnt be further from the truth. She had a sense like a beacon. She knew where she wanted to land. She was going to land there and if nobody else agreed with her on the court well, then, okay. But the way she operated, she often got agreement. Thats a fascinating observation that she was the swing vote just by virtue of the fact she happened to be in the center. If it had been a different balance she zouwould have had t same approach. She would say later over the years she had never changed, including when shed gone in the courts of appeals, that the court itself had shifted right. And that it became increasingly hard to remember what it was really like to be a republican or the right wing. She really no longer identified with that end of the political spectrum. Many justices have said that in public interviews. Justice stevens said shed never change when the court shifted right and Justice Ginsburg thought the court shifted. And yet professor osullivan, Justice Oconnors unique common law constitutionalism was distinctively consistent. She was absolutely approaching cases in the same way at the beginning and the end, and it does seem so striking in its distingtiveness. Theres not a single justice on the court who takes that approach today. Give us insight in where that approach came from in her background and how it played out when you were clerking for her. Erincrementalism and distaste for footnotes. Dont think about putting a footnote in an opinion. Why . I think she thought people were hiding things in there. She just Justice Brennan was. So three cases from now he could look back and say, oh, yes, in a footnote we said x or y. Our year was the year he did that . We were challenged to not have a footnote for the whole term. I think we made it and it was for the reason you got. It was a fear that if she hadnt read it and didnt understand all