So it’s my very great pleasure to welcome all of you to tonight’s event in which we are in cooperation with the Ninth Circuit Historical Society. I’m very pleased to present this tribute to Are you not hearing me? Okay. Now I can tell what a difference that makes. I was welcoming you. Maybe you heard that or not.

And to this event, which is being co sponsored. By the Ninth Circuit Historical Society in honor of, possibly Stanford Law School’s most distinguished, at least one of the most distinguished graduates Sandra Day O’Connor. And before I turn this over to the people who really are producing the program, I wanted to take the liberty, oh, first let me say I want to welcome.

Her family, her sons and daughters and other family members here. It’s really a pleasure to really a pleasure that you’re able to be with us tonight. And I just wanted to take the liberty of telling a personal story about Sandra Day O’Connor. I teach constitutional law, but this story has nothing to do with constitutional law.

It has to do with being an extraordinary human being. Early on shortly after she was Justice O’Connor became a justice my wife and I were putting on a big family dinner at our small house on a neighborhood near Connecticut Avenue, and Mary, my wife, took our then year old, year and a half old daughter, she’s now a lawyer in Denver but took her to the grocery store, to Magruder’s grocery store on Connecticut Avenue, which is, we only went on special occasions because it was more expensive than the Safeway but Mary went to the Magruder’s and, had this cart, completely filled with stuff for the Dinner party the family dinner.

We were going to be putting on and as she was heading up toward the checkout lines Harriet our daughter decided to start throwing an enormous fuss Many of you have probably been there. It’s really quite Difficult when you have a child who’s making herself thoroughly obnoxious to everybody very loud.

It was awful. And and Mary’s getting up to the front and in front of her in line at the cashier’s is this older woman with a card with only, a few, half a dozen items in it. And this woman who didn’t know Mary, had no idea anything, any about it, just looks back, sees. This young mother with a full cart of groceries and a screaming baby.

And she steps aside so that the young mother can go through first. And Mary then pays for the stuff and she’s totally flustered and the baby continues crying. And as she’s heading out the door she glances back and the woman was Sandra Day O’Connor. And the beautiful thing about that is that Justice O’Connor was one of the most important and powerful people in the world.

And she doesn’t, did not think that her time was more important than someone else’s in a predicament. And even better than that, no one would ever know. It’s one thing to do acts of kindness in the glaring light of of publicity, and you get, credit for it, but nobody would ever know. Except you.

You now know. Because I re this has stuck with me so much, and it just makes me feel so warm toward this warm human being, whom we know as Justice O’Connor. And with that, I now want to introduce Johanna Hartwig, who is the executive director of the of Ninth Circuit Historical Society, clerked for Judge Margaret McKeown and a couple years ago, I think, right?

And she will then introduce the remainder of the program. Johanna, thank you.

Thank you so much. I cannot think of a more perfect story to introduce this panel talking about the positive impact of the legacy of Justice O’Connor. A woman who was extraordinary across every trajectory of her life, including individual human kindness. That was really quite touching. Thank you for sharing that.

So yes, my name is Johanna Hartwig and I’m the Executive Director of the Ninth Judicial Circuit Historical Society and we are so delighted to be collaborating with the Constitutional Law Center here. And with the Stanford Law Review to put on this wonderful panel to accompany the outstanding tribute issue that came out last fall about the incomparable Justice O’Connor.

So I’m so pleased to be here in this collaboration. I think this is maybe our first collaboration, at least in a long time that we have had down here at Stanford. So I’m so happy to be here and I would like to add my welcome to The many people who are in this room and then the many people I know are watching across the circuit.

Thank you for joining us. The Ninth Judicial Circuit Historical Society, it’s a mouthful, you can find us at njchs.org. And we are an organization that has been around since the mid eighties and we do three things we’d love you to check out. We put on wonderful programs like this about interesting issues of legal history throughout the Ninth Circuit.

We have a wonderful journal called Western Legal History that Senior Ninth Circuit Judge Michael Daley Hawkins is the editor in chief of. Our last one, if any of you are interested in gambling law or the very interesting history of gambling law in the Ninth Circuit and how it has developed, that’s what our last issue was about.

Our upcoming issue is going to be looking at unenumerated rights. And then the third activity we have is we collect oral histories of our extraordinary judges and prominent attorneys throughout the circuit so that people can learn from their reflections and their examples. And so we look forward to connecting with all of you in the future.

We are so happy to be here today. I am going to be turning this over to Bella Marina Hipp, who will be doing the introductions of our wonderful panelists. I’ll turn it over to you now. And again, thank you for being here, and thank you to Stanford for welcoming us here. Add to the chorus of welcomes by introducing our three outstanding panelists tonight.

First we have Judge Michelle Friedland. She was appointed to the United States Court of Appeals for the 9th Circuit in April 2014. Judge Friedland received a B. S. in Ecology and Population Biology in 1995 from Stanford University, graduating Phi Beta Kappa. She then studied philosophy at Oxford University as a Fulbright Scholar, returning to California for law school.

She received a J. D. in 2000 from our very own Stanford Law School, graduating Order of the Coif and second in her class. She served as a law clerk to Judge David Tatel of the United States Court of Appeals for the D. C. Circuit, and then to Justice Sandra Day O’Connor of the United States Supreme Court.

Judge Friedland taught for two years at Stanford Law School before entering private practice at Munger, Tolles, Olson, LLP, where she was a litigation associate and then a partner. She litigated cases in the state and federal trial and appellate courts, with a particular focus on constitutional and antitrust issues.

The University of California was one of her biggest clients, and she litigated a variety of constitutional issues on the university’s behalf. Judge Friedland has also served as an adjunct professor at the University of Virginia Law School, teaching a course on constitutional issues in higher education.

We also are honored to welcome Professor Bradley Joondeph, He is a well regarded author on topics of federalism, judicial behavior, and American constitutional development. He has had extensive experience with the Supreme Court, having served as a judicial clerk to the Honorable Sandra Day O’Connor. He also served as a clerk for the Honorable Deanell Reece Tacha of the United States Court of Appeals for the Tenth Circuit.

Prior to joining Santa Clara University School of Law in 2000, Professor Joondeph was an associate professor at Washington University School of Law, a lecturer and head teaching fellow at Stanford Law, and an adjunct instructor at the University of Kansas School of Law. Finally, we have Professor Eugene Volokh, who is the Thomas M. Siebel Senior Fellow at the Hoover Institution. For 30 years, he has been a professor at the University of California, Los Angeles School of Law. where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks, The First Amendment and Related Statutes, and Academic Legal Writing, as well as more than 100 law review articles.

He is a member of the American Law Institute and of the American Heritage Dictionary Usage Panel, and the founder and co author of The Volokh Conspiracy, a leading legal blog. His work has been cited in more than 300 court opinions, including 10 Supreme Court cases, as well as over 5,000 academic articles.

He has also filed briefs in more than 150 cases and has argued in over 35 appellate cases throughout the country. He hosts Free Speech Unmuted, a podcast series sponsored by the Hoover Institution. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the U. S. Supreme Court and for Judge Alex Kaczynski on the U.S. Court of Appeals for the Ninth Circuit. We’re delighted to have you all here with us tonight. To start off what I’m sure will be a very rich discussion about the life and legacy of Justice Sandra Day O’Connor I was hoping that each of you might be willing to share a memory of Justice O’Connor that stands out to you.

Perhaps one that you didn’t share in your tribute essay. Should I start? Sure. First of all, thank you for the very kind introduction. Thank you all for being here and for having this panel. It’s a pleasure to be involved with these wonderful people on this panel and especially to have Justice O’Connor’s family here.

I’m going to try to tell some stories that I haven’t written about, and it’s really a pleasure for them to be able to be here to hear these stories, because she was really if not the most important, one of the very most important people in my life. I think about her all the time, and I have a lot of stories to share.

I one of them, I think there’s so many, but I guess I’ll start with one, which relates to just how much she really engaged with people. Professor McConnell’s story at the start here goes to the fact that she really loved interacting with people as a normal person. And she was interested in people’s traditions and their cultures and their different experiences in life.

And she truly wanted to hear about them and learn about them and didn’t just pretend. Like she actually, even though she was such an important person, would, sit you down and look right at you and want to hear about what your family did on holidays or whatever. One, one experience that I had in my year was that my co clerk, Anup Malani, who is now a professor at the University of Chicago Law School, was getting married during our clerkship year.

So he was Hindu, or is Hindu, and he was marrying someone Jewish, and it was going to be a Hindu Jewish wedding. And the justice thought this was so intriguing that we all had to go. So all the clerks and the justice, we packed ourselves up, we flew to Chicago, and we had to attend this wedding. And it was a pleasure to attend this wedding.

So we, we would have wanted to attend the wedding, like the co clerks, we were all friends, so we wanted to attend the wedding, but we thought we would have to work all weekend and not be able to attend the wedding. But in fact, the justice said we all were attending, so that meant we all got to attend.

And so we flew together to Chicago, and we went to this wedding, and she loved every minute of it, and didn’t want to miss a thing. One of the traditions was to get henna tattoos. So she insisted we would get henna tattoos, and so she got henna tattoos, and so did we. And she sat on the bench that week, hearing oral arguments with her henna tattoos, and no one reported it or anything.

I don’t know if the reporters could see it but I thought that was one of the best moments of the year, and I don’t think anyone’s ever talked about that happening, so you’re the first to know about it. That’s wonderful. Let me I have a story I shared a few stories in the in my essay that I thought captured from my perspective, a lot of the dimensions of her personality, at least as we experienced it as clerks.

Obviously no, these are all just little bits and pieces the sum. Of her is so much greater than all, what all these stories reflect. But I’ll just tell a story and I need to back up just a second. Because it too, in its way, I think sheds a lot of light on, on what she was trying to accomplish and what she thought was important.

So the way I got to know her was I started Bella your nice introduction. Mentioned, I started my academic career at a place called Washington University in St. Louis. And it was literally two weeks into my time as a brand new professor there that she was invited out and I’m sure it had been arranged like a year in advance to, she was the person to come dedicate the new law school building, Anheuser Busch Hall, lo and behold, in St.

Louis, Missouri. And and my a close friend of mine was clerking for her at the time and he mentioned, when you go to Washington University, I actually have a friend who’s on the faculty there. He just started. You should say hello to him. So quite Awkward moment for me, here is the chancellor of the university.

I think there are people from the city of St. Louis. There’s my entire new set of colleagues as a brand new professor all standing there. Justice O’Connor comes in and she just says, Where is Brad Joondeph? And they’re all and I felt a little squeamish about that, but what have you, we ended up, I ended up my wife and I unofficially being her host for that entire weekend and it was a wonderful weekend, and it was great to get to know her, I thought it was such a magnificent opportunity, she goes back to Washington, D.C., and about 24 hours later, I get a call from my friend who’s clerking for her saying, you Have you thought about applying for a clerkship for Justice O’Connor? And I was like, oh, I’ve graduated. I went through this whole process. I actually interviewed with someone, one of the justices. Four years earlier and didn’t get the clerkship.

I’m, I’m past that and he said you just might want to think about it because she just can’t stop about how much fun she had that weekend in St. Louis with you. So I was like, okay I, what the heck? I felt like I was long past this. So I went ahead and applied and I go back and interview and the one searing part of my interview with her that I remember was apparently there had been someone who had clerked at the court within some years before that.

And went back to clerk at the court after having been a professor for a number of years and it hadn’t, I guess it hadn’t worked out so well, or that’s what the rumor was. And she, the first thing she says to me is she says, now I told myself I would never hire a law professor as a law clerk. Why would you?

Make me make an exception to that rule. And so then it was like and I tried to explain why I thought I could still, serve in that position and what have you. It ended up working out and it was a wonderful at, Magnificent Opportunity. And one of the things in picking up on what you said that I thought was so remarkable, every time I get introduced, it doesn’t matter at what event I get introduced at it’s always in association with her.

That is just like a defining element of my life and my career, no matter what I do. And it speaks to how central that experience was to, to my life. But fast forward We’re three months from being done with the clerkship. We’re having a lunch out in one of those outdoor courtyards, like Crocker Garden, where you have the big, heavy metal tables.

And she would, gather us together for lunch. I had a job already, so I didn’t have to worry. I was gonna, after my leave, I was going back to teach. My three co clerks didn’t, which is most common. Most clerks don’t have jobs that they’re settled into for after they graduate. They’re going around the table about what we’re gonna do.

And one of my co clerks was very uncertain. She said I might do this. I might do that. I really haven’t decided. I need some time to think about it. And Justice O’Connor just says whatever you don’t become a law professor.

And I just immediately thought it was her, needling me, and it was this running joke we had. But she had, after nine months, I think, Forgotten that was my profession. And so there’s like sort of one of them says why is that justice? They just don’t do anything all that important.
They don’t actually do things in the world. And then it was pretty clear. that she had completely forgotten. And it wasn’t a joke. And so there was this awkwardness and then I said for me, Justice, it’s actually been, a pretty rewarding profession. And then she realized and, starts backtracking a little bit.

But what she meant by that and what I totally appreciated was that really What she was most concerned about was that all of us gave back and that we contributed to society in meaningful ways. And she was a little skeptical, understandably, about, the ivory tower and how much we really added to our communities.

I really appreciate, it was pretty funny and put me in my place, as many things did when I was working for her. But on top of that, it really spoke to what I thought was what she cared most about among what we could do and how we could add to society. Sorry for the lengthy wind up there.

Those are great stories. Mine is a little different. I clerked before before clerking for the Justice, I clerked for Judge Kaczynski on the Ninth Circuit, and it was a very very time consuming and demanding clerkship. And I think Probably one reason she’d hired a lot of clerks from him is because it was time consuming and demanding and we were taught to do certain things.

So I was just fine with it and I was trying to show off to the justice. She had been out for the summer and she’d, we’d talked on the phone. She wanted me to write a draft of a speech for her and I finished it on Saturday. And just as I’d had for the judge, I would, I thought I’d drive out and leave. The speech the draft of the speech on her.

That was the norm in the judge’s chambers. But, of course, you don’t want to leave it just on the porch because it’s not secured. So you put it under the door. So that’s what I did. So Monday morning, she’s in chambers for the first time. And, of course, every morning she’s in chambers, the four clerks get together with her to have So we all sit down, Justice.

It’s just to start saying, I can’t do a good justice, but I’m going to try. I’m going to try to approximate very slight. She says let me tell you what happened Saturday night. I was out with John O’Connor for dinner and then we came back to our house and we opened the front door and it opens a bit, but it doesn’t fully open because there’s some papers underneath.

But it opens just enough to trigger the alarm. And the, I think it was, I always get confused Chevy Chase or Bethesda. I think it was Chevy Chase. The Chevy Chase Police Department hears there’s an alarm at Justice O’Connor’s house. So they all come out and it turns out it’s just these papers. I am utterly mortified.

I’m utterly mortified. He says everything was fine, but let me just tell you, if you finish something on a Saturday, it can wait until noon. And on the one hand, she was really very, gracious about it. She could have been a lot harsher with a lot of justification for what was, after all, I interrupted in an unpleasant way, her evening.

But she was very nice. At the same time, it was pretty clear, don’t do it again. Laughter That’s Mike. Wow. What amazing stories. The more I learn about her, the more I really wish I had the opportunity to meet her. She’s Sounds tremendous. We’ve heard some really funny Characterizations and got a sense of what a rich person she was and in her dynamic personality But I’m wondering if you guys could share a particularly challenging case or situation you encountered during your clerkship with Justice O’Connor and any sort of recollections of how she approached it and what you learned from that approach?

Should I start again? Yeah, sure. We had a, I’ll go with a challenging situation, which was, so I clerked in the year of the September 11th attacks, and then after, you may remember, that after the September 11th attacks, there was also an anthrax. and anthrax attacks across the country. So, we were at the Supreme Court and there had been anthrax detected at the Capitol and in other mail facilities.

The Supreme Court mail was getting tested for anthrax every day. It turned out they were delivering the mail while the test was running. One day, they called everyone in the building to a conference room and said, The mail that was delivered three days ago tested for tested positive for anthrax today They had delivered the mail even though the test hadn’t finished running and so that meant everyone in the building had been exposed to anthrax so We all had to start taking Cipro or doxycycline and we had to evacuate the building immediately.

So we Were faced this is a challenge. I call this a challenging situation. So we had to not be at the Supreme Court and yet there were oral arguments scheduled to happen, about six days later, if I remember right. Or a week later, so we ended up moving chambers. to the D. C. Circuit. My co clerk and I had clerked for Judge Tatel at the D.

C. Circuit, and so he let us have our office back. So we had a law clerk office where Justice O’Connor sat in the law clerk chair, and we sat on the floor, and we prepared for the week’s arguments, which instead of happening at the Supreme Court, happened at the D. C. Circuit that week. This is not convenient and it was not very it was not ideal in a lot of ways.

It was not as formal as we were used to having and things were not as orderly as they should have been. So the justice wasn’t thrilled about this, but she was also just very determined to not be scared and to not let any of this get in the way and to do the business of the country and to do the business of the court and to not let, Some clerks in the court were very scared at this point, because we’d had the September 11th attacks, which, would have included the Capitol across the street, and then we were exposed to anthrax, and so we had clerks who were like, Thinking of just quitting and leaving because it was a pretty scary time.

And there was not to be any of that. She was just like, there is no time for fretting. We need to get the work done. And we just need to get through this and we’re going to decide these cases. And it was not ideal for a number of reasons, including that. The materials for the cases were in the Supreme Court, but we weren’t allowed to take them because they were exposed to anthrax.

So we had one of each brief, like instead of having, nine justices copies of the briefs plus clerk copies for the clerks, there was like one that we were running around the DC Circuit sharing among the chambers of each brief. And it was really challenging circumstances. But she just And so we kept going and all the cases got argued and we decided, everything proceeded and we learned to just be tough and carry on.

And that, so that is what we did through that challenging situation. Yeah, that sounds like some of the stories of of her being on the, things happening on the ranch and what have you. So I guess what I would share is it’s a little more within the opinions, to some degree, because I don’t remember anything other than having to deal with me and my house sitting of her house that she had to deal with that was particularly challenging during that year.

There was a drought that summer and I was responsible for taking care of the house and all of the plants of the yard and what have you, and suffice it to say that wasn’t the apex of my skill set. So the thing I remember that was really challenging is of course, famously, Justice O’Connor was in the majority slash plurality in Casey.

with Justice Souter and Justice Kennedy in upholding Roe versus, what they characterized as the central holding of Roe versus Wade and, fashioning a slightly different legal standard, but nonetheless standing on the side of a constitutional right to terminate a pregnancy.

Prior to the viability of a fetus. In our term, the term I clerked October term 1999, there was a case from Nebraska that involved a procedure known as either dilation and extraction or termed partial birth abortion. And the question came up whether that was in the law that Nebraska had enacted.

proscribing that particular method of abortion was unconstitutional. And what was challenging, I think, and I appreciate it a lot more today than I did at the time, just as someone trying to get the work done is that Justice Kennedy went to the other side of the on that issue. Or however you want to characterize it.

He voted to. uphold the law and say that it didn’t violate the 14th Amendment, the Due Process Clause of the 14th Amendment. And it was quite clear that left her exposed to some degree and feeling very vulnerable. Depending on how you see these things. She had taken a, um, you might characterize as courageous, but it is certainly a a stand in Casey that left her exposed to a large degree to criticism and it was easier because there were other Republican appointees of her ilk that were with her in Casey.

And when Justice Kennedy voted the other way in that case, I think it made her very uncomfortable. And yet as you say, there was no it was difficult coming through working on the opinion, making it just right. You could feel the sort of anxiety and stress in our helping to craft that language.

But there was never any sort of doubt as to what was going to happen in the end. And it was that same sort of unwavering commitment. To what she believed was the right thing for the country and for the law and for the constitution that ultimately guided where she ended up. Yeah. I had maybe a similar.

story, although with a much lower profile and case in which I think probably she was less particularly interested in, it, in this respect, it’s representative of very many cases at the court. Of course, what happens is there’s an oral argument Monday, Tuesday, or Wednesday, at least our term that those are the days or our terms where those were the days.

And then on Fridays, the justices would get together for conference and that. that express their views and vote. And usually you see there’s a majority of one side or another, and justice is appointed to write the majority opinion, justice appointed to write the dissent.

Sometimes people flip, but pretty rarely. But there was one case in particular where, I think she’d said, I think that was her phrase that she wasn’t at rest on it. And apparently many of their other colleagues weren’t either. Like it came back from conference like, there’s a sense about the bottom line, but what the rule ought to be, who knows.

So I knew generally speaking what she thought was probably the right approach. I, Tried to draft the opinion consistent, of course, with with her views. But, of course, always the hope is you get a majority. And most of the time, most of the cases, there was a majority one way or the other.

But this one turned out it wasn’t. She wrote the, ultimately wrote the opinion for for justices in the plurality. And there was a concurrence and there was a dissent. And I felt bad about it because I thought one of the things as her assistant that I was supposed to do is to try to help bring about something that would produce a more useful thing.

Because majority opinions are more useful in many ways than pluralities. But her view was this is what I think is the right answer. In some situations I think she was open to compromise if necessary. She had after all been a very successful state politician. But, if this is the right answer and if my colleagues, at least at the court, don’t agree that’s what happens.

That’s what happens. And she just moved on, and that was actually a very big part of, I think, her personality. Just move on. You make a decision, you see how it comes out, you move on. You don’t worry, you don’t agonize, you certainly don’t dither. And and and it taught me something about how, some of the time, the result may not be something that everybody agrees on, but that happens, and you just move on to the next case.

That’s my story. Much less dramatic.

I’m having the worst time with this mic, you’ll have to excuse me. These are all wonderful stories. We’re starting, I think I’m starting to get a sort of flavor for the way that, that Justice O’Connor navigated these differing opinions and coalition building efforts on the court. Something that came out as I was working on the Stanford Law Review issue that you all so graciously contributed to is Justice O’Connor’s legacy as a bridge builder on the court.

Both in terms of fostering collegial relationships among the people on the court and in terms of her sort of coalition building jurisprudence. I was wondering if any of you might want to reflect on that or chime in on that. Do you want to go first? Yeah, the only thing I would say is that yeah, and I, you it’s interesting from the perspective of a clerk because I don’t know what your guys experience was, but.

We rarely saw, or ever saw, when she was interacting with another justice. That happened in, at times that we didn’t see. And you’re trying to piece together from bits of information you hear from other, almost from other sources within the building, like what your boss is up to with respect to her interaction with other justices.

But I don’t, what I, thought to be the case from best I could discern was that she spent an awful lot of time with Justice Breyer. And that makes some sense in light of kind of the role that they both played. They still voted, to Eugene’s point, they still voted against one another.

In many cases on opposite sides. But they both had this sort of approach to the institution and to, to the I guess how they could work together as colleagues in representing the court that were very similar to one another, even if their substantive views about a lot of legal issues were quite different.

And it was that temperament or that approach or that s that sense of role in being a justice at the court that they had very much in common. And so I saw the two of them working in that same way to build bridges. Putting aside all the times that she was, like, needling Justice Thomas to show up for lunch and things like that.

I have a Justice Breyer story. So maybe I’ll Justice O’Connor used to take the clerks on a field trip at the end of the clerkship term to say thank you and do something fun at the end of the year. We would also do field trips during the year, which maybe we’ll touch on, but there was like a goodbye field trip.

And so as we were approaching our goodbye field trip, she gave us some choices of what we would do. And my group decided to go to a Baltimore Orioles game, which would also include a tour of the stadium. We got in the van and drove out to Baltimore, we had crab for lunch, and we went to the Orioles game, but she knew that Justice Breyer loved baseball.

And once we were going to the baseball game, she said, we have to invite Justice Breyer. We were going to invite Justice Breyer and the Breyer clerks. In the end, it was actually a field trip for the Breyer Chambers and our chambers. And we all went to this game. And it was a rare chance to see the justices really interact.

We didn’t get to see that very often. If they were having a conversation about a case, they often went into their office by themselves. This was, we’re all sitting at a baseball game together. And they were truly genuine friends. You could just tell that they really liked each other and were enjoying this game together.

But as the game goes on they had to go to a party, and my recollection is that it was the Chief Justice, there was a party at the Rehnquist’s house, but I don’t remember for sure that’s true, but I know that they both had to go to some dinner party. Which meant that we’d all come on a van from the Supreme Court, but they were going to need to leave with the marshals or the Supreme Court police.

And they had told the marshals or the Supreme Court police, whoever these guys were to come get them. I think it was at the end of the sixth inning to drive them to this dinner. So the marshals come to where we’re sitting. And remind them that it’s time to go to the dinner. And they’re having so much fun that they say, let us stay another half inning.

So the marshals go away. And it’s the half inning back. They come back, time to go to your dinner. They say, we’re having too much fun. Let us stay another half inning. So they stayed at least another inning, maybe another, like this happened three times. Probably it was another inning and a half.

Eventually they leave with the marshals and to show how much they, she just acted like a normal person in the world outside the court, people two rows back reached over and tapped us, the clerks who were still sitting there to watch the rest of the game and What did they do to get kicked out of the stadium?

Because these police officers kept coming to talk to them and then escorted them out. And Vince Chabria, who was a briar clerk, is now a judge in the Northern District. He said, they were harassing the umps. And the people just thought that was true and they left us alone the game. They had no idea who they were.

God, that reminds me, the photo that we get at the end? I took that to get framed actually just down the street here on El Camino. And the really charming woman said, Oh, this must be so nice. This is Judge Judy, right?

Never mind that it said, Sandra Day, it was signed, whatever.

Yeah. I think the justice was very gracious to her colleagues and was always pleased to get along well with them. I clerked the last year before justice. Briar was on the court, so I didn’t see their relationship. I remember for Thanksgiving she invites all the clerks, but she makes clear, if you’re going back to see family, of course, you go.

Kate Adams, she’s a lawyer. She’s now, she works for her. For a fruit company, general counsel of fruit company Apple. So Kate had to be back back home. I think James Foreman had also family things. Mark Perry was another co clerk of mine was there.

And so she invited me. We had just 20 years before we’d come from Russia, but we never really got into Thanksgiving. That was never a big thing in our family, so we were happy. I was happy to be in DC. She invites my brother, who was actually living with me for a year, my younger brother.

So that was very nice. And there’s Justice Souter sitting at the table because, he doesn’t have close family. She wouldn’t want him to be alone on Thanksgiving. It was such a delightful thing. And just very gracious. She invited him because that’s the thing you do, like if there’s a colleague who who doesn’t have a place to go for Thanksgiving, of course you invite her.

So that, I think, was very much part of her character. I’m not sure about coalition building on the court as such. Justice Brennan was famous for doing that. My sense, I’ve heard rumors that Justice Kagan play, tries to play a similar role in some measure, or has at various times during her term of service.

Again, as you point out, we didn’t really see them. talking about the cases with each other. My sense was in a lot of the things that she felt strongly about, she tried to bring people around with the force of her reasoning, but like on punitive damages or commercial speech or whatever. Some of the time she was in the dissent.

That’s the way it is. That’s the way it goes. It may be that in Casey, I wasn’t there for the Casey term, but Casey may have been just such an important case and so unusual to have the three justices co writing this opinion. That might have been something that she really worked hard with him on.

But don’t think that was the norm. I think again, that must have been it for her to become a successful political figure. But I think in the court, I don’t think she viewed herself as a coalition builder. I think she was always, of course, very happy when others saw things her way. Of course, she was tremendously influential when it came to federalism cases where she was part of the majority and often the intellectual leader in it.

But I don’t think she viewed it as coalition building, it’s just this, now is the time for us to actually do something about this facet of the constitution. And there are other areas like with the establishment, where establishment clause jurisprudence on the endorsement test. At times, a few people went along with it.

It’s obviously never terribly popular either on the left or on the right. But that’s the way it went. That’s the way it went. She said what she had to say. Didn’t need a coalition. Can I follow up on this? I have the great honor of being a judge now myself, and so I’ve, I think I have more appreciation for some of this now because I see it in action, at least on my court.

And I don’t know, so I will say, going back to like how we started this panel, She loved people so much that I think she may have just built relationships with their colleagues and wanted to have lunch with them and wanted to take them to baseball games just because she loved people and wanted to be friends with them and it is more fun to be friends with people than not to be, right?

So if you’re going to spend all this time together, it’s really nice to like the people you’re with and to get to be friends with them. I also now have the perspective that it’s useful to decision making also to actually respect your colleagues. And she was You know, famously always respectful, never wrote harsh criticism in a dissent about the majority, never criticized a colleague personally, ever.

And I think having the attitude of respect for your colleagues and being friends with your colleagues actually fosters better listening. When I’m in conference, if we have a good relationship among the judges in conference. We actually hear each other better, we understand, we try to understand where the other one’s coming from if we disagree and actually engage with the argument better than if there’s a panel where people really aren’t listening to each other and have gotten mad at each other and are not engaged.

Just basically think if that person disagrees, they’re saying something crazy. You don’t deliberate as well if you think if someone disagrees, they’re saying something crazy. You deliberate better if you think, this is a very reasonable person who I’m friends with, and if they’re saying something, maybe I should think about why and engage with it and respond to it.

And I try personally to do both. I actually like being friends with my colleagues, whether they just agree with me or not. It’s just more pleasant, but also I think it actually makes for better decision making as the court. And so whether she was doing both on purpose or just it was her nature or what I actually think she probably was contributing to better decision making through the collegiality.

Sorry, I need to touch on another issue I wanted to get to which is, We’re seeing a portrait of Justice O’Connor as a person, but I’d like to maybe touch on Justice O’Connor as a jurist. Professor Volokh, you wrote in your essay a lot about her religious Her religion clause jurisprudence. But I was wondering if you or anyone else would like to touch on what, in what areas her jurisprudence has held up and in which areas?

It has not extended. So there are two ways at least, of thinking about a judge’s jurisprudence. One is. What did the judge think? Why she thought it? What one might say for or against it? The other is something that is ultimately very much not in anyone’s control, which is, do the justices today go along with it?

And some of it is a matter of, first of all, the force of one’s reasoning, but also the willingness to say certain things that may not prevail in your time, but that end up being picked up later. And so there is some element that is to the credit of the justice, but there’s some of it some other president appoints some other justices and they may agree or disagree with you.

You could have the best arguments, but they just don’t buy those arguments and what can you do not your fault again? I think her view would be just do the best you can So it’s interesting if you look at the religion clauses there are at least two areas in which she Was at least originally in the descent in some measure and ultimately was vindicated in one just vindicated in the sense that her views prevailed, and it looks like she’s about to be vindicated.

Another, and another in which she actually prevailed for a brief moment. The court has moved on to a very different position. So one of them is the establishment clause when it comes to even handed government funding program. For a long time, there was this debate about, what do you do about programs where the government says, here’s a pot of money, and people can use it.

Schools can use it, people can use it, for all sorts of purposes. For religious purposes, for non religious purposes. Classic example, historically, has been the GI Bill. Somebody gets in the military essentially gives them a scholarship to college, doesn’t care if he goes to UCLA, or if he goes to Stanford, or if he goes to Notre Dame.

Public, private secular, public or private religious, doesn’t matter. That’s long been understood as perfectly acceptable under the Establishment Clause. But when it came to K 12 education, for a long time, the view on the court, I shouldn’t say for a long time, through the 70s and much of the 80s, the view of the court was no.

That is an impermissible establishment of religion, even when The benefit program is even handed, it’s available to all schools, and in fact, with almost all of these things, public schools would get a lot more, or parents who want to send their kids to public schools, would get a lot more benefits. And parents who would send their kids to private school, mostly religious, because that’s most private schools, but also secular, would get smaller benefits.

But the court said, no, that’s unconstitutional. And she fought it from some of her first years on the court. And eventually she very much prevailed especially as to private choice programs where the parents make the decision about where we’re to take the school voucher, take the school choice program.

So she ultimately prevailed five four on this in a case called Zellman v. Simmons Harris. And now actually, it took a while for the political process to actually adopt a lot of these things, but I think a lot of places it’s happening and I don’t really. I think even some on the left have reconciled themselves to this.

A second area is religious exemptions. The question is, should religious observers get religious, essentially objectors, get exemptions from generally applicable laws? For a while, from the early 60s to about 1990, the view was, Yes, at least in many situations. That was generally associated with the left at the time.

It was, Justice Brennan was very much a leader in this, by Justice Marshall and some others. Then in 1990, in a case called Employment Division v. Smith, that was reversed. And the conclusion was no, free exercise clause protects against targeted Restrictions on religion, but it doesn’t give people a right to exemption from a generally applicable law like drug laws or employment discrimination laws or a wide variety of other such laws.

And she was Not quite in the dissent, technically she concurred on that, in that particular case, but basically in the dissent together with Brennan and Marshall and Blackmun, but Blackmun by then had been, had become quite a liberal justice, generally at least associated with the liberal wing of the court.

And that was her view and that continued to be her view. And now, interestingly, Things have flipped almost entirely. Just Employment Division vs. Smith was written by Justice Scalia, joined by Kennedy and Rehnquist, two conservatives. Stevens, who at the time was seen as a centrist, and White, who was very much a centrist.

So the conservative view was no exemptions. And the liberal view, although joined by Justice O’Connor, was Yes, exemptions, at least in many cases. Now it’s flipped. The conservatives on the court look poised, I mean there are cases where it makes clear that they have at least five votes now, to reverse Justice Scalia’s view and adopt Justice Brennan’s and Justice O’Connor’s.

And the liberals on the court seem much more hesitant, much more open to basically Justice Scalia’s view. On the subject and incidentally something similar has happened in the political process as well. So it looks like she’s about to be vindicated. Again, at least in so far as today’s majority justices which is to say today’s conservative movement has ended up taking More that view than, say, Justice Scalia.

And then there’s this, the endorsement test. So for a long time, she took the view that a good deal of religious speech by the government is permissible. I think it has to be, just given the ubiquity of religious reference in American history. Look at the Declaration of Independence. Not just about the opening where it talks about nature’s God, but The closing where it talks about the Supreme Judge of Nations and reliance and divine providence.

You’re not gonna, I take it, try to remove that from there or remove let this be our motto, and God is our trust from the national anthem. But she thought no, nonetheless, the government has to avoid setting aside some historical reference, avoid speech that endorses religion. And that became very much her test.

Nobody fully joined that, I think, as to all facets of it. Although some of the liberal justices, ultimately, it as to government speech. She would have applied it to government action as well as government. And That’s just not where the majority of the court is today. The court has expressly rejected the endorsement test.

I think there may be good reasons for that, in part because the endorsement test, ultimately, was hard to tell. The question is what a reasonable person would understand something to be. And, of course, different people understand things very differently. Justice O’Connor, I think, was a very reasonable person.

But obviously, she wasn’t the only reasonable person. Other people said we’re just as reasonable, and we think differently, or we don’t think this is a an adequate guide. It’s an interesting example. I suppose this is true, though, for many justices. You again, you do your best. That’s all. You do your best.

And then, future generations, they’ll take pick up on some things. They’ll Not pick up on other things. What can you do? Not a lot. Can I jump in because I have a story about the endorsement test? Okay, so When I was invited so I was this I don’t think this really happens so much anymore But I was actually a 3L here at Stanford when I got invited to interview with her for my clerkship so I went to DC and I was pretty nervous.

So I really wanted the job. I thought she was amazing. And I wanted this job, of course. And actually, Professor Joondeph was, it was the year he was clerking. So he may have a different side of this story. But I go and I interview with her and she asked me I now realize, and I realize even the next moment, that she asked me to tell her about a decision of the court that I disagreed with.

I was so nervous that instead of talking about a decision of someone on the court that I disagreed with, I told her a decision of hers that I disagreed with, which I didn’t need to do the way the question was asked. And I immediately, in the moment, thought, I am not getting this job. But what I talked about was the endorsement test.

Her endorsement test, where she first articulated it was in this Lynch v. Donnelly opinion about a crash in a public square. And it was a crash surrounded by a Santa Claus and Colored lights and apparently a teddy bear. And basically Justice O’Connor wrote that the Establishment Clause test should be whether people will perceive this as endorsing religion.

And she articulated a test that was this endorsement test and then applied it to say that The crush is religious, but Santa Claus is not really, and neither is the teddy bear. And so the entire thing wouldn’t be perceived as endorsing religion. And so in my, I don’t know what I was anyway, in my nervous stupor, I told her that As being Jewish, the whole thing seemed to me to be about Christmas.

And I didn’t perceive any difference between Santa Claus and the creche. Even if someone Christian would know that the creche is religious and Santa Claus isn’t, to me, it’s all about Christmas, and I feel like it is about a religion that I’m not part of, and I do not feel That this is welcoming to me and so I told her that I disagreed with her application of the endorsement test in Lynch v.

Donnelly And then I was sure I left just completely sure that I was not getting the job So I was so so thrilled, but I did get the job, of course but it also I think is a good lesson like I and she did this in the clerkship She always I later learned that she really told us from day one That we should disagree with each other and tell her if we disagreed with her because the only way to get to the right answer is to actually think about the other arguments and to deal with them and deliberate about them and and she told us, the cases at the Supreme Court are hard and that’s why they’re at the Supreme Court and so to have differing views is very reasonable and we should hash them out and not be shy about that.

And I try to do that with my clerks now. I think it’s the right thing to tell people to disagree because otherwise you’re just you and you don’t, you’re not learning anything from anyone if you don’t hear a disagreement. So I really appreciate that she hired me anyway and I think it is a lesson about how she approached disagreement.

But I feel really lucky that, I don’t know, I don’t know how I got the job. Because it was not a thoughtful answer. I’ll just say she, she adored you. And it was I remember the being, because she would ask the candidates to come meet with the current clerks after the interviewing with her.

I think with all the other people who came through that year, she actually earnestly asked our opinion of them with you. She didn’t even bother to ask us because she had already made up her mind. It’s very kind. I don’t know if that’s true, but it’s very kind. But anyway, I’m very grateful I got the job anyway.

You were very, yeah. I don’t know that I have much to add to this Bella other than to say, at a very high level everyone knows what’s happened with respect to. Her position on affirmative action, her position on abortion, her position on campaign finance. Those were all, I think, people thought of them as hallmarks of her jurisprudence and none of them are currently where she was.

They’ve gone by the wayside. I think in trying to think even more broadly about how our constitutional system is. Operating right now it, we’re all very susceptible to projecting onto people that we admire opinions that we share because we think, oh we really admire them.
They must. see the world the same way. So with that as a caveat, that might be 90, wipes out 98 percent of what I’m about to say. But I would say she seemed to me, she always struck me as someone who is very committed to respect for institutions respect for civility respect for following the process.

As it’s set out. And I think, I think she would be, I don’t pick the exact right word somewhat troubled by the place that we’re currently in. Thank you all so much. I know we want to get a leave time for some audience questions at the end, but I do want to ask one last question before we move on to that.

We are at a law school so I would love to hear what advice you think Justice O’Connor would give law students and young lawyers entering the profession today. Don’t be an academic. Oh so let me offer a friendly amendment to that. I do remember when she knew that I was. that I’d already taken a job as an, as a professor’s assistant professor at UCLA.

But she was, it was quite clear, she thought that, but at least before one becomes an academic, one should be a practicing lawyer. And my guess is that as a general matter, we never had this discussion about, say, big firm life and the like, but my guess is that the advice you would give is take every opportunity you can as a lawyer, especially a young lawyer, To do real lawyering, maybe be a prosecutor, maybe be a public defender, at least do something other than either the purely ivory tower, or working in a big firm, basically in a very narrow corner of life, doing very little of what she associated from her own career with lawyering.

So I think she would say, look, you’re young, don’t, Even if you do want to become either an academic or a big firm lawyer, go and try to do something that actually exposes you to actual practice of law in relative variety of settings. And I think she’d be open to this at big firms, but she’d also, again, say at least make sure that you try to do something that actually gives you the opportunity to actually handle a case.

Could be pro bono could be various. Other things could be just working at a smaller firm for a while, or maybe more boutique firm. But I think she was a lawyer before anything else. Before she was a justice, before she was a politician, she had been a lawyer. I think she was committed to the profession of law, which both includes the professionalism, the the good behavior and the respect for the system and the willingness to uphold the system, but also the profession in the sense of actually becoming a successful and, uh, educated, practically educated practitioner.

I think that’s the advice she would give. I thought it was interesting this criticizing law professor thing because I actually remember my view of her mentoring was that it was pretty individualized, actually. And I thought this was a very cool thing about her. We would have lunch together often.

As the clerks with her almost every day, sometimes out in the courtyards, sometimes in chambers. And often former clerks would visit. And so often if former clerks were visiting, they would ask for advice about something, or they might visit because they were thinking about changing jobs, or they were coming to ask for advice.

And so we would get to listen to this. And I actually remember her giving very different advice to different people. And I’m certain she gave at least one person the advice that you should go be a law professor. Yes. Okay that’s crazy talk. But I’m wondering, listening to both of you, because I think her, and maybe there was a bit of a gender element because it was a woman, and I remember that her advice wasn’t just about, it was definitely about, Go, help run our government, help, help people do something, be practical.

Definitely that element was there, but it was also make sure you have time to raise kids, make sure that are happy in what you’re doing, make sure you’re using your skills and that you’re, so some people, you are both wonderful professors, some people’s, teaching students and mentoring students is what makes them happy and they’re great at it and that’s the way they’re contributing and I actually think she, Tailored her advice enough to appreciate that I remember her saying to some people, you know If you are a professor you’re gonna have more time with your kids you should really think about doing that whereas she would tell someone else like you should go be a law firm partner and It was tailored, which I tried to do, I actually think that’s the right thing to do because people are different.

So I really appreciated that aspect of her mentoring, and it’s interesting to reflect on that when I hear the stories about it. But she might have just been teasing you, too. Anyway. There was plenty to tease. Yeah I think, I remember, again I, trying to, I can’t remember if it was apocryphal, but it was so her.

that was whatever you do, just be great at it. Which, for me at the time was like and what if I’m just not great at much of anything, I can just be as good as I can be. But like her standard of greatness was a little high given what she accomplished. Yeah, exactly. I’d go into the baseball game.

There was just so many times where we would go do those things, but there was no letting up on the, yeah, of the work. Anyway So I, I think she would say throw your, throw all of yourself into it. Throw all of yourself into whatever you’re doing. Don’t do anything in life that you’re not really excited about, and that you don’t think you can have a meaningful impact through doing.

That was the underlying message that I got. And I do, there’s one thing it got, I never heard her say it, but it got back to me. That she actually talked about when our son was born my wife kept working but I I took a semester off to take care of our son for his first six months and that she talked about that I have a male law clerk who, took paternity leave and, isn’t that, that wouldn’t have happened 20 years ago.

There’s a way in which she did appreciate, these things. Alternate paths and being a law professor, if it meant getting to be a stay at home father for a little while. Wonderful note. I’d love to welcome up a few representatives of the Stanford Law Review to kick off our Q& A.

And then anybody else in the audience with questions should feel free to line up at the microphones that Morgan’s getting ready. And we just ask you to please speak into the mic, especially because we have folks who are on the live stream and we want to make sure they can hear the questions.

Hi, I’m Greg Schwartz, President of Volume 77. Thank you all for being here tonight, sharing these stories and insights. Professor Jundef, in your essay, you discussed how Justice O’Connor prioritized pragmatic concerns. My question for the panel is if you all think that Justice O’Connor saw herself that way.

If you ever saw her struggle with that position, and what you think we might learn from that position. That’s a, it’s a terrific question. So just in, in case people didn’t hear the full aspect of that, it’s I describe her jurisprudence to some degree as, as pragmatic in in the essay that I wrote.

And the question is whether she saw herself that way. I, that, it’s a terrific question in the sense that I never felt like she was self consciously anything. in particular, in her approach. Um, I mean, I don’t think she would deny being pragmatic in the sense that she was always quite conscious of, at the end of the day, what the court was doing, how was it ultimately going to affect people and lower courts, and how were they gonna deal with and react to whatever it is that the court was doing.

But I also felt like she, she never subscribed to fitting into any sort of jurisprudential school or box or anything. It was, I mean it’s cliche, but she was very much we just take each one as it comes. And it’s not, sometimes pragmatism gets parodied as just All we’re concerned about is the consequences.

We’re not concerned about what the law dictates or anything like that. It was more Let’s take all of this into account and think through from all of these angles what makes the most sense in this particular case, probably leaning towards, erring towards, deciding as little as possible to leave things open for future courts, future legislatures, future executives to respond to what the court does.

And then if stuff comes back, then we deal with it then. That would be my reaction to your question is a great question. I think it probably deserves more thinking on it before having a better answer. Yeah, I think that’s right. I think she thought the law ought to make sense. Now, everybody thinks the law ought to make sense, but to some people, the way it makes sense is by fitting some broader overarching theory.

I don’t think that was Hearst. I think she, all justices have looked at original meaning time, at various times. Sometimes when it looks like it reaches the results they like. But but all of them did. All of them looked at times one way or the other at inferred legislative purpose.

She just didn’t think that it needed. any one interpretive school or any one overarching approach to the Constitution or the statutory interpretation made sense. In that respect, I think she’s very much like many a traditional common lawyer. She’s not a Justice Black, for example, or Justice Thomas will be the polar extremes of this on the court in, in, say, the last 60 years or so, not like Justice Scalia, probably not quite like Justice Brennan either.

At the same time, she had very firm views. To give an example she was quite willing to move the law quite considerably on questions of federalism and on state authority. And she was the necessary fifth vote on that. She was probably more enthusiastic about it in many ways than many justices.

Many including, I shouldn’t say many, but at least some on the right. Think she was a pragmatist, again, that means very different things to different people. But I think if you talked to her too long about, here’s the theory, she’d say, that’s why I tell people not to be law professors, right?

And I think part of it is that she just was a practical person. So I’ll go and the letter that is in my piece in the Law Review, really, I think shows one of the things that’s so incredible about it is. She had her personality when she was 21 years old. The same practical, energetic, loving people person was the same person then and later.

And the loving people being, wanting a lot of work for people, caring about the effect on people. being practical in all ways, all the time. It was just to her core. I don’t think it was like a thing she put on. I think it just was her.

Hi, my name is Damian Richardson. I’m the president of volume 78 of the Stanford Law Review. Thank you for your essays. Thank you for sharing your memories today. My question is for anyone and comes from my review of a manuscript that the law review received recently. on the concept of judicial regret and one of the vignettes that the manuscript opens with is of Justice O’Connor’s reflections on Grutter for which she was a critical fifth vote for holding together affirmative action until SFFA.

And yet she still publicly noted regret about the 25 year clock that she noted at the end of the opinion. And was it really a singular example of a Supreme, a US Supreme Court justice being willing to interrogate previous reasoning and assumptions. So I’m curious if you saw. This cuts against some of what some of you mentioned about just moving on.

So I’m curious if you saw any of that while she was on the bench.

So I can’t quite speak to that. But I do think that’s actually an excellent illustration of the limitations of pragmatism. In many ways, she was a pragmatist on race based affirmative act. In a time when really Some on the court were hardcore, no race based affirmative action. And others, I think, would have been much more willing to allow a much greater degree of preferential treatment based on race.

And one has to recall that, that a lot of her early cases, which did not involve education, she was she was quite prominent in in imposing very substantial limits on race based affirmative action in contracting. I think a considerable measure in employment and you’re quite right in redistricting.

I think she thought education was in some ways different. And again, that’s her pragmatism. You might ask okay, what’s the theory behind why education is different? Life has all of these things happening at once. Education, to many, is a step towards employment, contracting, and such. You can come up with a theory as to why it’s different.

It just may not be a Particularly effective middle ground, particularly defensible middle ground. That’s what she thought. And I do think she, she continued to think that and regretted the moves the moves away from race based from allowance of race based affirmative action.
But but again, there were other areas where she was quite firm on the requirement that at least in, except in extraordinary cases, race could not be considered even for supposedly affirmative purposes. So I think that may be in a sense the regret of the pragmatist. You think you’re being reasonable, but other people, again, who think they’re being reasonable.

Come up, end up being reasonable in a different way than you. I, I don’t recall any Did she say that after she was off the bench, or? I believe the first comment was five years after the decision while she was still on, on the bench. And do you happen to remember the context in which? I can’t I can’t recall.

And I’m more curious about the her broader approach to jurisprudence rather than this specific issue Oh, sure. and what it reveals about maybe a singular willingness to, to Approach one’s last past decisions. Yeah. No I totally appreciate that. I’m just trying to hearing that, I am surprised because my sense was always it wasn’t that she had no doubt, she didn’t have doubts.

It was more There was no use in having doubts. There was no use it’s over, it’s water under the bridge. What is she used a phrase that I, water over the dam or whatever. She used that phrase so many times when I was clerking. It was just like, that’s happened.

The, any moment you spend thinking about something that’s already happened is wasted time that we could be more productive on doing something that’s in front of us. And it wasn’t so much that she actually thought she was always right as much as just very practically, we don’t have the time here to worry about that.

We got a, we got plenty in front of us. That’s why I’m curious about this, is to what context in which that would arise in her. Yeah I didn’t know, I don’t think I knew about this instance. I can think of a couple where she said publicly things about old opinions that seemed like maybe they had a little bit of doubt, but I really think those are like, The needle in the haystack the pillow was maybe an error, never in doubt right on her couch in Chambers and she just really had this attitude that I think people have written about, including in, in I’m not remembering which essay talks about this, but it was an approach of do all the work in the case, Until it’s decided, do your best to study every issue.

Think about every nuance, but then make a decision and then immediately move on. And I remember her saying that we owe it to the next, the people in the next case to not still be thinking about the last case. Cause every case is hard. And if we don’t. put all our energy into deciding the next case correctly.

We’re depriving those people of our work. And once the other case is done, it’s done. And there’s something, there’s no use spending our energy there. I actually think it’s incredibly valuable approach because you do owe all your work to the next case. Once the last one is done. It doesn’t mean not.

Being thoughtful and questioning, but it really does mean being very deliberate about your efforts and where they’re put. And she was pretty deliberate about looking forward, not looking backward. . She didn’t put it this way, but it sounds like you’re saying that her view was regret as a luxury of the idol.

Yes. And she wasn’t idle ever . So there was no time for regret. No. That, no she wasn’t. I, this may be a little off the subject, but I’m here serendipitously this evening because I was here all day at a conference. And I saw the poster, and my father was a law professor here, and was her undergraduate law professor here.

Oh, wow. And I’ve seen a number of interviews with her, where she attributed her career to that law professor, who was my father, and I don’t mean to be disrespectful, but I always knew her as Sandra Day, because, we all have an origin story. And she was the roommate of my cousin here at Stanford.

And my cousin dragged her to the law class of her uncle and they went through that law class and my father and mother used to lead sort of groups on in our family home about purpose and meaning in life, the bigger purpose and meaning. So Sandra Day and my cousin would, my cousin dragged her over to our house and attended a whole, she attended a whole series of meetings.

And The one thing that she recalls from my father’s class was inspiration and one person can make a difference. And I hear that echoed through your conversation here. And we often disregard the origin stories of that, those early experiences that sort of formulate your life. And then I remember her as a young student here, but from some wild ranch off in New Mexico or Arizona or something where life is very pragmatic and water over the dam is very real.

And when you have your roots in that kind of earth bound sort of reality, you become a pragmatist, I think. And it’s wonderful to hear all the reflections of her later career and the expression of some of those things that probably went into her as an earlier part of her life.
So I really appreciate being here and hearing this. It’s wonderful to make that connection. And thank you very much for your sharing. Wow. We’re so lucky that you’re here. Thank you to your family’s influence on her. Because the other thing, I had the great honor to host her here at Stanford for three days in a program I held helped to set up here on purpose and meaning.

And so she gave our annual fellows this talk and purpose and meaning here in the Stanford Memorial Church. And there should be a recording of that, which I’ve listened to many times because she really talked about her own personal journey in that dimension. And I think it gives a lot of background to what I hear you saying she expressed in her later life.

Thank you. Thank you.

Justice O’Connor was known as a moderate on the court but that label was also used to describe Justice Kennedy. However, many people think Justice Kennedy often swung like either to the left or to the right much more unpredictably depending on which side was more pro liberty, whereas Justice O’Connor’s jurisprudence.

Although also a moderate was more measured in the sense, I was wondering if any of you could comment on whether you Observed this sort of distinction or phenomenon between the two moderates Your time. Thank you Just as O’Connor was not a moderate She was a moderate conservative but if you look at whom she voted for she voted with if you look at It’s hard to define who’s conservative and who’s liberal, who’s Justice Brennan, who’s Justice Rehnquist.

They’re perfectly good proxies. You look at whom she voted with more often. It was quite clear it was Justice Rehnquist then say Justice Brennan, or later on, let’s say even Justice Ginsburg, which who actually wasn’t as liberal as Justice Brennan. We remember her. Moderate votes in a few cases, but by and large, she was very much with the conservatives on the court.

So was Kennedy. I think if you look at the numbers, it varies from year to year. There were times when she was more on the or on the left and sometimes when he was, and I can’t speak in particular as to your more specific question, whether there was a greater amplitude of shifts. I’d be happy to hear that, but I just think it’s important to remember she was fundamentally a moderate conservative for much of the time on her court.

That means she was called the conservative because that’s roughly where the conservatives were. She was generally not as conservative. Justice Scalia and Kennedy and not even just as Justice Rehnquist, but she was no centrist. Justice White, one could probably call a centrist on the court throughout much of his career.

That was not Justice O’Connor. Yeah. I don’t, I’m not sure I have a, yeah, I don’t think I have anything more to add to that. I think, Justice, the nature of Kennedy’s jurisprudence was that I think he, he saw things. He tended to see some things more in black and white, and that would create some of the apparent phenomenon that you’re describing whereas I think she did not.
She was, as Eugene very aptly described, very much a common law sort of approach to deciding cases, which means you don’t see things quite in categories in the same way. You approach things much more incrementally that’s your temperament as you approach it.

I’m Scott O’Connor, so Justice O’Connor raised me and my brother, Jay, over here. I wanted to respond to the question about the advice she would give to young lawyers today. And, um, there’s a part of her story arc that I reflect on that she never really told this way, but it. I think it beautifully answers that question.

Judge Friedland wrote about Mom’s job application letter. This five page thing she typed here at Stanford Law trying to get hired at no pay. At the San Mateo County Attorney’s Office. That was job one. Job two was Dad. When the guy went into the Army and became a JAG officer he was stationed in Germany.

So mom hired on as a civilian attorney for the Army. That was job two. Job three in Arizona, after passing the bar exam, she hung out a shingle in a crummy strip mall in a poor part of town, and took whatever came in off the sidewalk. Fourth job. This is fourth job in, as a lawyer. She got hired by a very forward thinking State attorney general.

You Who gave her the worst job in his office, but it wasn’t in his office. Her desk in her office was at the state mental hospital, which was an embarrassment to the state of Arizona. Astonishingly underfunded. The conditions that she observed there every day when she went to work were hideous. She had no idea then, that a few years later she would be the majority leader in the state senate and could secure funding to fix that problem.

But at the time, She had very unattractive clientele, let me tell you. But her advice is, no matter how unglamorous that job is, you give it your all. I heard two or three of you say that. You give it your all because you never know when that’s going to come back around like karma and give you another opportunity.

It’s a perfect answer to that question. She would definitely say that. And you give it your all because every job deserves your all, even if it doesn’t lead to anything else afterwards. Hi, I’m Robert. I’m a first year undergrad. I feel like a lot of the advice, even though I’m not a lawyer or I’m not a law student, is still really, I’m not sure where this falls on the list of jobs that she did but it was my understanding that what makes her unique is that she was a state senator, a legislator in a supreme court that did not have any other state legislators or any legislators with legislative experiences. I think besides one who was a legal counsel for.

So I was wondering if you could talk more about how that impacted her kind of decision making and how she, how would she react to this court that, doesn’t have, seem to have any experience with legislated, legislating and seems to want to step away from I don’t know, yeah. All I would say is it’s very hard to evaluate how much it affected her just because she was who she was and so there’s no sort of comparator.

I would say that she, and I remember this even in the, I referenced that abortion case earlier I helped with her on that. All of us in chambers helped with her concurrence in that. It was clear to me that she had a sense of how Congress and how state legislators would react to the opinion.

And that’s not to say that it shaped what exactly she would decide. But it might have shaped the language that she used in expressing what she thought the right legal answer was. I think she had both a practical sense and a sensitivity to what legislators are facing in a way that most likely, colleagues who have never had that experience wouldn’t have to the, at least to the same degree.

I, things I may make I will say on a lot of the issues that are very closely linked to question of state legislators, she took exactly the same view as say, just as a Scalia and Thomas and Rehnquist and Kennedy, none of whom had some of who at least, All but Kennedy, I think, had pretty substantial political branch experience.

But but none of them had legislative experience. And the last legislator at the court, not a state but federal, was Justice Hugo Black. Who, in many ways, at least as best I could tell from his jurisprudence, you couldn’t really see much sense, oh, he has extra respect for the legislative branches.

Because of his legislative experience. So it is always very difficult to try to track these things down. And then just to be clear I meant sensitivity too. That didn’t always mean that she thought highly of what they would be likely to do. She saw the sausage being made. Yeah. So it cut both ways in terms of understanding, understanding them in all of their dimensions, I think.

We’ll conclude this incredible panel discussion. I’m so glad we were all here to honor Justice O’Connor tonight. And thank you all for your excellent questions and reflections from the audience. We will follow with a reception downstairs in Cooley Courtyard. For the next hour or so, and I hope you all join us.

Joh Johanna, do you want to say anything else? I just wanted to add my thanks for the excellent questions and for the incredible sharing from our wonderful panelists, Judge Friedland, Professor Joondeph, and Professor Volokh, and the excellent moderation by Bella Ribb. So let’s give a round of applause to everybody.