Establishing Justice

SANDRA DAY O'CONNOR

Editor's Note: This paper was delivered by Justice O'Connor as the Society’s Thirteenth Annual Lecture on May 6, 1988. This paper is the text of that speech.

Precisely 201 years ago in Philadelphia, 55 delegates from 12 states at the Constitutional Convention set their minds and hearts to work in order "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."

The delegates told us their purposes at the very start of their final draft of the Constitution. If the order of the list of their purposes means anything, "establishing Justice" was particularly important; it ranks second only to forming a more perfect union.

Many things are involved, of course, in the effort to "establish justice": enumerating rights possessed by every individual, setting standards for holders of public office, and placing limits on the powers of government are just a few examples. In a sense, the whole of the Constitution was an effort to establish justice by establishing a just government. But from my perspective as a judge, one thing that "establish justice" surely means is the establishment of a judicial system.

This is an auspicious time to examine the framers' development of Article III, creating the judicial branch of our government. We have witnessed recently the process of selection of a new Supreme Court Justice to replace Justice Powell, who retired after 15 years of distinguished service. The debate over the nominations of Judge Bork, Judge Ginsburg and Judge Kennedy focused public attention on the Court and has led to questions concerning the Court's role in our constitutional structure, its power, and the manner in which it operates. The answer to all these questions lies in Articles II and III.

The framers of our Constitution set for themselves a broad agenda. They were to create an entirely new structure of government. That we are still here with that structure intact is a powerful testament to the skill and wisdom they applied to their task. Whether the fact that 33 of the delegates were lawyers accounts for much of that skill I cannot say. The breadth of their work, however, often makes it difficult to divine precise guidance from their deliberations, for in certain instances, there was little debate concerning particular provisions.

In reviewing the records of the Convention, one is struck by how little attention was paid to the judicial branch. In contrast to the extended debate concerning the composition and the structure of the legislative branch and the manner in which the executive should operate, which spanned months, the intermittent debate over the judiciary could have easily been conducted in a single afternoon. Perhaps the delegates had exhausted themselves on. other matters and were worn down by the hot Philadelphia summer when they turned finally to the judiciary. After all, they did not begin to discuss in earnest the more difficult questions concerning the third branch until after the Great Compromise--resolving the structure of the legislative branch--had been reached.

But comments made in the course of the debates that did take place concerning the judiciary suggest another reason: the general lack of controversy was due not to exhaustion but to a general high regard for the judiciary.

The experience with a despotic monarchy, and with state legislatures the framers felt had run wild, led to a wary, if not disparaging attitude toward the legislative and executive branches. A single executive was seen by Edmund Randolph as dangerously close to a monarchy. (Farrand, Records, I at 66 [June 1]) James Madison worried that the executive might ''pervert his administration into a scheme of peculation and oppression." (Farrand, Records, II at 65 [July 201) The legislature fared even worse in the delegates' minds. Gouverneur Morris predicted that "[t]he legislature will continually seek to aggrandize and perpetuate themselves," (Farrand, Records, II at 52 [July 191) and in the view of Nathaniel Gorham of Massachusetts, "public bodies fe[lt] no personal responsibly[,] g[a]ve full play to intrigue and cabal" and engaged in "dishonorable measures." (Farrand, Records, II at 42 [July 18])

In contrast, the framers had only kind words for the judiciary. Oliver Ellsworth of Connecticut, for example, who became the third Chief Justice of the United States, saw the judiciary as possessing "wisdom and firmness" and "a systematic and accurate knowledge of the Laws." James Madison was even more effusive, arguing that the judiciary would preserve "a consistency, conciseness, perspicuity and technical propriety in the laws." (Farrand, Records, II at 74 [July 21]) And James Wilson pointed to the example of Great Britain where he felt the "security of private rights is owing entirely to the purity of her tribunals of justice." (Farrand, Records, [July 21])

Because they held judges in relatively high esteem, the framers were somewhat less concerned with erecting checks on judicial power than they were with creating similar checks on the other two branches. Perhaps there are those today who think our judges might not deserve such favored status, but in the minds of the framers, the third branch was the least dangerous branch.

When the framers did get around to discussing the judicial branch, they were faced with three primary questions: first and foremost, should there be a federal judiciary at all, and if so, should it be limited to one supreme court or include as well a host of lower federal courts; second, who should select the judges for whatever courts were established; and last, what should be the terms and conditions under which those judges would serve? All these issues were eventually addressed--or intentionally not addressed--and the result is the federal judiciary we have today: a third branch of 749 active judges and over 18,000 employees.

The idea that there should be some sort of national judiciary was present from the very start of the Convention. The Virginia plan, which set the groundwork for virtually all that was done at the Convention, provided that a "national judiciary be established to consist of one or more supreme tribunals and of inferior tribunals to be chosen by the national legislature." On the second full day of deliberations, the Convention approved a resolution "that a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary." Within two weeks, the delegates began considering a more detailed resolution on the national judiciary.

Starting with the language of the Virginia plan, the framers merely amended it to provide for "one supreme tribunal and one or more inferior tribunals." This version was approved by the full Convention without debate. Though the question of inferior tribunals was later briefly revisited, the passage of this resolution left us with the Supreme Court we have today.

Alexander Hamilton in the Federalist Papers offered some insight into why there was so little debate about creating the Supreme Court. He wrote that "laws are a dead letter, without courts to expound and define their true meaning and operation." This may be overstating the role of courts, but Hamilton's basic point was that laws created by the new national government would inevitably wind up in court, and thus a new national court was necessary to interpret them. Hamilton noted that "all nations" had found it necessary to establish "one tribunal paramount to the rest… authorized to settle and declare in the last resort an uniform rule of civil justice." Since the framers were attempting to establish one unified nation, they naturally wanted one uniform set of laws. They felt only a single national Supreme Court could ensure that the national laws would be uniformly applied.

This desire for uniform interpretation and application of the laws continues to the present. My colleagues and I on the Supreme Court usually choose to review cases that present issues over which lower courts have split. We find resolving such conflicts to be so important we have incorporated this factor into our Rules as a consideration governing review on certiorari.

The people have also demonstrated their desire for uniformity in the application of our national laws. In the 14th Amendment, added to our Constitution in 1868, "equal protection of the laws" was elevated from a worthwhile goal to a constitutional imperative. And we on the Supreme Court have a very concrete, daily reminder of the need for uniform application of the laws: our building is inscribed with the words "Equal Justice Under Law."

There is another reason the framers found one supreme tribunal indispensable. Simply put, judges could not be trusted to agree with each other. In an observation as true today as it was 200 years ago, Hamilton noted in the Federalist Papers that "We often see not only different courts, but the judges of the same court differing from each other." This could certainly be said of the Supreme Court today. Of the 175 cases we heard argument in last year, there were differing opinions in all but 25. The framers recognized that since we judges could not seem to agree, the only way to get a final answer was to have one final court of last resort. In short, Hamilton accurately reflected the attitude of the framers toward the Supreme Court when he said that the need for ''one court of supreme and final jurisdiction is a proposition which is not likely to be contested."

Notwithstanding the agreement concerning the need for a Supreme Court, the issue of the lower federal courts--inferior tribunals in the parlance of the framers--was hotly contested. Only one day after the modified Virginia plan resolution sanctioning "one or more" inferior courts had been approved, John Rutledge of South Carolina, who later was nominated as a Chief Justice of the United States, moved to reopen debate. He argued that the Supreme Court was sufficient to ensure uniformity and that lower federal courts were too great an intrusion on state courts. Another delegate echoed this concern, lamenting that "the people will not bear such innovations," and predicting that the states would revolt at such encroachments on their jurisdiction. Roger Sherman joined the opposition to inferior tribunals, but he cited no such lofty concerns as state sovereignty. For him, it was a matter of simple economic efficiency. He saw lower federal courts as an expensive redundancy because the state courts were already in place and could do the same job.

James Madison was not swayed. He stuck to the Virginia plan's proposal, offering an argument that made him a dear friend to all Supreme Court Justices. He was concerned that unless there were inferior federal courts dispersed throughout the country with final jurisdiction in many cases, the appeals to the Supreme Court would become oppressive. Madison thus became the first to express concern with the workload of the Supreme Court. While this argument alone sounds more than sufficient to a Supreme Court Justice faced with our Court's large workload, Madison had another motive for supporting lower federal courts. He worried that without lower federal courts, the Supreme Court would be left powerless. Having no federal trial courts to rely on, the Court would be forced to merely send cases back to the state courts which he feared would simply come up with the same result again. Providing no lower federal courts, Madison picturesquely warned, would leave "the mere trunk of a body, without arms or legs to act or move."

The rest of the delegates were unmoved by Madison's elegant plea. By a 5 to 4 vote, with two state delegations divided, the Convention voted to eliminate the lower federal courts. The consummate politician, Madison immediately offered a compromise; he proposed an amendment empowering the legislature to institute inferior tribunals, without mandating that it do so. This solution garnered overwhelming support.

Thus, only nine sessions into the Convention, the delegates had already agreed on the basic structure of the judicial branch of government. The result was the first clause of Article III, section 1 of our Constitution, which reads as follows:

After spending the month of June hammering out the structure of the other two branches, the framers returned to the judiciary and the remainder of Article III on July 18, when they resolved the important question of who should select the judges.

The Convention's earliest discussion of who should exercise the power of appointment took place in the course of the delegates' approval of the idea of a federal judiciary. Benjamin Franklin slyly suggested the method employed in Scotland. As Franklin explained it, in Scotland the judges were selected by the lawyers, "who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves."

The Virginia plan had called for appointment by the national legislature. Agreeing with this scheme, Madison had initially argued for selection by the Senate. But after the Great Compromise had left that body composed of an equal number from each state, he, together with other delegates from larger states, changed his tune, favoring Executive appointment instead. Those from smaller states, predictably, favored legislative appointment.

With the battle lines drawn, some hyperbole began. First the larger states attacked legislatures in general. One delegate said public bodies would be "indifferent" to selecting qualified judges, since they "feel no personal responsibility," citing the Rhode Island legislature which had recently dismissed judges who had the temerity to hold one of their acts invalid as an example of "the length to which a public body may carry wickedness and cabal." Another delegate lamented that "appointments by the legislatures have generally resulted from… personal regard, or some other consideration than... the proper qualifications."

Delegates from smaller states came to the defense of legislative appointment. Roger Sherman, for example, argued that the Senate "was composed of men nearly equal to the executive, and would of course have on the whole more wisdom." These delegates from smaller states also attacked the Executive as unfit to exercise the appointive power. They warned that he would use it to garner favor from the larger states upon whom he would depend for election and that he could not possibly know enough to select qualified individuals.

Nathaniel Gorham of Massachusetts eventually suggested that the Convention adopt the method employed in his home state, where the executive appointed the judges with the advice and consent of the legislature. This suggestion, which sounds eminently sensible and familiar to our modern ears, fell on deaf ears at the Convention initially. Instead the delegates voted on a proposal by Madison that the judges be nominated by the executive, with the appointments becoming final unless two-thirds of the Senate disapproved. Madison mounted an elaborate defense of his proposal, but when the roll was taken, he had fallen short. Seizing the moment, advocates of legislative appointment immediately moved that the Senate appoint the judges and without further debate, the motion passed.

This is where matters stood until the waning weeks of the Convention, when mysteriously and without debate, a change was made. On August 31, a mere three weeks before the Convention adjourned, a committee with one member from each state was appointed to consider a variety of proposed changes to the draft constitution. Four days later, this Coinmitten of Eleven reported back a host of changes, among which was a section adopting Gorham's idea: The President was to appoint judges of the Supreme Court with the advice and consent of the Senate. Without debate, this provision was approved, leaving us with the second clause of Article II, section 2, which reads as follows:

It is this clause which was at the forefront of public attention in September during the Senate hearings on Judge Bork's nomination. As we have just seen, however, the history of this clause offers little guidance as to its proper construction; the meaning of its crucial phrase, "Advice and Consent," was never discussed. Thus, as is true with so many other provisions of the Constitution, it has been left initially to the branch that must exercise a specified power or apply a particular provision to give content and meaning to the broad language employed by the framers.

Now that they had decided we should have federal judges and who should pick them, the final question confronting the framers with respect to the judiciary was the terms and conditions under which these new federal judges would serve. Today, we generally take for granted the willingness of the other branches of government to enforce the decisions of the federal courts, even those with which they disagree.

Our judicial ancestors, however, did not always fare so well. In Georgia, judges had been whipped for some of their rulings. In Massachusetts, they had been beaten and terrorized. In Pennsylvania the treatment was less violent, but equally cruel. The Pennsylvania legislature landed on the rather simple strategy of enacting drastic cuts in judicial salaries, starving the judges out of office or into compliance.

The delegates at the Convention recognized that such actions did not produce an atmosphere conducive to impartial, detached decisionmaking. The Declaration of Independence noted similar behavior by the King of England, charging that the King "has made Judges dependent on his Will alone, for the tenure of their offices. and the amount and payment of their salaries." At the Convention, the framers sought for ways to prevent such dependency by insulating judges from the potential wrath of the other branches. As with the other areas, here, too, the Virginia plan provided the model. It called for judges "to hold their offices during good behaviour" and provided that there be "no increase or diminution" of judicial salaries. This aspect of the Virginia plan was first addressed in the Convention on July 18, when Gouverneur Morris, in a move that has forever endeared him to the entire federal bench, proposed that the resolution be amended to permit increases in judicial salaries. Morris thought that in-creases could be authorized without creating any dependence of the judiciary on the legislative branch. Thankfully the rest of the delegates concurred.

But the remainder of the Virginia plan's treatment of judges remained intact. The only attempt to change the formulation came late in the Convention when John Dickinson of Delaware suggested that judges should be removable "by the Executive on the application by the Senate and House of Representatives." Gouverneur Morris, now quickly on his way to becoming patron saint of the federal judiciary, immediately opposed the motion, arguing that "it was fundamentally wrong to subject judges to so arbitrary an authority." Edmund Randolph joined Morris, arguing that Dickinson's motion "weaken[ed] too much the independence of the judges."

Dickinson's proposal was defeated, with only one state voting in its favor, and the Convention immediately approved judicial tenure during good behavior by an overwhelming vote. This left us with the provision we have today, the second clause of section 1 of Article III which reads as follows:

With this third issue resolved, the framers had finished with the judiciary. In the Federalist Papers, Hamilton described the end-product, writing that:

This was certainly correct 201 years ago, and indeed, is in a sense equally true today. Judges must rely upon private citizens to bring cases before them and upon other branches of government to enforce their decisions. But at the same time, as one of our greatest Chief Justices, John Marshall, said, "The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all." This fact, particularly in what seems to be an increasingly litigious society, gives the third branch considerably more influence than any of the delegates to the Constitutional Convention might have expected. My hope is that when we judges exercise this influence and power during the third centennial of our franchise that we also consistently exercise the sound judgment the framers were so confident we possess.