Court TV Host: Discuss Justice Sandra Day O'Connor's legal legacy with Deborah Jones Merritt, a former O'Connor clerk and law professor at Ohio State University's Moritz Law school.

Court TV Host: Welcome, Professor Merritt. Thanks for being our guest today.

Deborah Merritt: I'm delighted to be here.

Question from Az: MERRITT- Sandra Day makes me proud to be an Arizonan!!!

Deborah Merritt: She makes me proud to be an American -- and has made me want to visit Arizona! The Justice is very proud of her Arizona origins and always encourages her clerks to visit and work in the state. In fact, two former O'Connor clerks are currently Justices on the Arizona Supreme Court

Question from ah: Given Justice O'Connor's policy of "moderate conservatism," were most debates within the Court focused on swaying her one way or another?

Deborah Merritt: I'm not sure what you mean by "within the Court." Within the Court itself, most of the decision-making goes on in individual chambers--i.e., each justice studies, thinks about, and decides the cases more on their own.

Question from ah: Debates not in open court, but rather in chambers.

Deborah Merritt: But thinking for a moment about arguments to the Court, certainly there would be cases in which the lawyers would focus on Justice O'Connor -- or on some other Justice--as especially important. Many people think that the Justices spend a lot of time lobbying one another for votes -- or maybe that the clerks lobby one another to get votes from their Justices. Some of the books that have been published about the Supreme Court tend to suggest that. But it's not really that way. Each of the justices, I have found (and I also clerked for Justice Ginsburg when she was on the lower court), is very involved and thoughtful about deciding each case. They each spend a lot of time reading the briefs and thinking about each case. And each tends to have their clerks write memos summarizing the cases and giving them input (e.g. suggestions of questions to press the lawyers on). The Justices certainly discuss the cases when they vote, but my understanding (and it's only an understanding because no one but the Justices is in the room!) is that they don't even do that much debating or discussing then. Each person presents their position and views, and the vote then becomes clear. There really isn't a lot of internal lobbying on the Supreme Court. It's very different from a legislature.

Court TV Host: Do clerks do a lot of the lobbying?

Deborah Merritt: Actually, during the year I spent at the Court I found that clerks did no lobbying. Occasionally we would give one another a hard time about a position that the other clerk's justice was taking, but that wasn't really lobbying. We all knew that our justices were pretty decisive. When I read a few of the books by former clerks, I get the sense that they are aggrandizing their own former positions. It's a wonderful, wonderful job, being a Supreme Court clerk, but you don't get to make the decisions!

Question from ah: Is there a particular case that you feel both exemplifies Justice O'Connor's ideology and has had a lasting impact on the legal landscape?

Deborah Merritt: There are lots and lots of them. One of the cases I have been thinking about recently is the ten commandments case -- or cases, since there were two of them. Justice O'Connor has pioneered the view that the establishment clause should be interpreted by looking at whether a practice (like posting the ten commandments) gives people a feeling that they are being excluded. Some people look at that standard and think that it isn't "legal enough." It sounds like something anyone could think of! But, in fact, I think this standard is very helpful -- and that it includes exactly what the framers had in mind. When we look at things like the posting of the ten commandments in a courthouse, we should ask: What impact does this have on people visiting the courthouse? I think the Justice and others who joined that decision properly concluded that posting the ten commandments in a courthouse gives visitors -- who may be on trial for their lives -- the sense that they are being judged on their religious views. This case is one of many for me that exemplifies how Justice O'Connor can articulate a legal standard that makes sense. Another case I think of is the recent one about the government taking property for public purposes. Justice O'Connor was in the dissent there, objecting that the government should not be able to take your home for any purpose a group thinks is public. There is a particular danger of favoritism or even corruption in local governments (hmm, we've seen some of that corruption in Ohio recently). That case exemplifies for me Justice O'Connor's commitment to a kind of freedom and liberty that I think we all value as Americans -- and that the framers very much had in mind. Interestingly, her position in the religion cases is analogous to the one in this property case -- although people don't always think of it that way. The common theme is that we each have freedom to make certain decisions on our own.

Question from Az: Gee, they will be encouraged not to rob lie or commit murder-- what a concept.... well, I guess if you are in a court of law being tried then that would tend to make you feel alienated....

Deborah Merritt: There are lots of ways to make clear that we are against robbery, lies, and murder. We have to remember that the ten commandments also include specific commandments about honoring God -- not everyone has to honor God in our society. I think Justice O'Connor said it best in her dissent from the other ten commandments case (the one involving the ten commandments on the grounds of the Texas statehouse). She noted that our country has one of the most diverse mixtures of religions of any nation on earth -- and we have avoided the kind of bloodshed that many, many other countries experience. The less fortunate countries include even places like Ireland and England. So she pointed out that we should be careful about removing our constitutional protections - ones, after all, given to us by the Framers. We've been doing the right thing with the First Amendment, so why change?

Question from Meggie: Why does the Court decide to take a case or just ignore it? I mean how do they decide on which cases to take?

Deborah Merritt: Excellent question, especially since the court gets thousands of cases each year and can only hear between one and two hundred. One of the most important criteria is whether the issue in the case has already been considered by a number of other courts. This may sound odd -- and unfortunate if you're the person with the case that first raises the issue. But the Supreme Court likes to wait for several courts to decide an issue before they plunge in. The reason for this is that, as more judges consider an issue, the nuances are revealed. Better decisions are made in the end. After that criterion, the court looks to whether there is a difference of opinion on the issue. If it's an important issue but all the lower courts are deciding it the same way, then there's probably no reason for the court to intervene. The final criterion is whether the issue is one of national importance. The Court, for better or worse, can't correct errors in individual cases. Even if a horrible injustice has been done, they may not be able to hear the case. The question is whether the case presents an important issue of law -- something that will affect other cases and people. That's hard for people to understand, but it's important to remember that there are lots of other courts (the lower federal courts, the state supreme courts) that exist to correct errors in particular cases.

Question from courtside: What was it like working for Justice O'Connor?

Deborah Merritt: It was wonderful in all sorts of ways. The Justice is an extraordinarily active person, interested in all sorts of things. She has a tremendous command of legal principles. When I worked for her, she had just come to the Supreme Court -- and much of her previous work had been in state courts and legislatures. Yet she immediately had a broad command of all kinds of federal law areas. One of the things I found most impressive about her was that she was very open-minded, but at the same time... very decisive. She would read briefs and articles voraciously to find out about the arguments. Then ask questions of the lawyers in court to clarify her views. But she always came to a pretty decisive point in any case. On a personal level, it was very impressive working for Justice O'Connor. She cared a lot about our welfare as clerks, and about our families. She remembers the names of all of our children. And she presents each child born to a clerk or former clerk with a little t-shirt saying, "SO'C grandclerk." The "SO'C" comes from an internal system of initials that the Court sometimes uses to designate Justices. Someone early on designated her as "SO'C" for "Sandra O'Connor." Don't know why it wasn't "SDO" for Sandra Day O'Connor, but the original stuck.

Court TV Host: How did the drafting of your memos and her briefs work?

Deborah Merritt: The Court hears about 30 cases a month. When the cases were assigned for a particular argument period, the four clerks in our chambers would choose the cases we would work on. We did it like a "draft" system. i.e., we would take turns each month on who could choose first. Luckily, each of us tended to like different kinds of cases. Once we had chosen our cases, we would each write memos on those cases for the Justice. The memos were usually about 30 pages long. They would summarize the facts and status of the case, the arguments of the parties, and any other perspectives or theories about the case. Those other perspectives sometimes came from what are called "amicus briefs." These are briefs submitted by people who are interested in the case from some angle. Other times, the additional perspectives would come from scholarly articles. Once we had written the memos, we would give copies to the Justice as well as our co-clerks. The five of us (Justice and four clerks) would get together to discuss each case. This was always scary because the Justice and other clerks are very smart! They would often point out things I hadn't thought about or raise questions I hadn't thought to raise. The point of these meetings was to get the Justice ready for oral argument. After oral argument, she would meet with the other Justices and the cases would be decided. At the end of each week, the Chief Justice would make assignments of who would write the opinion in each case. If he wasn't in the majority, then the senior justice in the majority would make that assignment. Each chambers, of course, would be assigned only a few cases. In our chambers, the Justice would ask the clerk who had worked on the memo to do a first draft of the opinion. She would talk first with that clerk about what she wanted the draft to stress, the type of reasoning she and the other Justices wanted to follow, etc. Some people think that Supreme Court clerks go off on their own tangents when they write the first draft of an opinion, but it's not like that. Through all the previous discussions, we have a pretty good sense of how our Justice wants the opinion to read. And there's a real pride as a supreme court clerk in sounding like your justice -- in getting the first draft to be the way he/she would want it to read. Anyway, after the first draft the Justice would make substantial revisions and eventually the opinion would go to the rest of the Court to see if the other justices would join.

Question from irtnes: How conscious was SO'C of being a 'swing' member?

Deborah Merritt: I'm not entirely sure about that because when I clerked for her (in her first year) she wasn't yet considered the swing vote. From my sense of her, and some things she has said publicly, I think she was conscious of that designation -- but didn't always agree with it. The Court's decision-making is very collegial -- not in the sense of lobbying one another on cases (talked about that before!) but in the sense that they all know that they can't decide things individually. A decision takes five votes. So I think the Justice sometimes was impatient with the discussion about her being a swing vote. She was very aware of the fact that four other votes were just as important.

Question from neerdowell: Did you ever find yourself writing an opinion for Justice O'Connor that you didn't really agree with? Does that happen to clerks?

Deborah Merritt: You know, after 24 years, I don't entirely remember which things I agreed with and how strongly! And I suspect my own opinions on some issues have changed over the years as well. But I can answer the question more generally, because it came up all the time at the Supreme Court. Yes, almost every clerk (for whatever Justice) works on an opinion that he or she disagrees with. Most of the Justices (maybe all, I just don't know them all) very much like hiring clerks with different political opinions. I remember one case in which a very conservative clerk was working on an opinion for Justice Brennan (one of the most liberal members of the Court when I was there). I think we don't mind doing that as clerks because we respect both the process and our Justices. There is no one on the Supreme Court who decides cases on a whim or political favoritism. And all of the cases there are hard ones in which there are good arguments on both sides. Otherwise the cases wouldn't have reached the Supreme Court -- the Court doesn't take cases on which all of the other courts and scholars agree. So, even if you disagree as a clerk with the position of "your" Justice, it is a position you can respect, that has good arguments supporting it, etc. Another interesting thing is that the Justices themselves sometimes write opinions where they dislike the bottom line. Let me explain that one! There's no one on the Supreme Court who likes flag burning or flag burners. These are people who are very supportive of the country, our laws, etc. But, when the Court faces flag burning cases (or similar events) there are Justices who believe that the First Amendment protects that speech. That, in a sense, the First Amendment is MOST important when applied to speech we hate. So a Justice might write an opinion with a bottom line -- allowing a flag burner to go free -- that he or she didn't like. But he or she is writing the opinion to uphold the system of free speech, and that system is the most important thing. That's part of the largest point of all: The rule of law, a system in which people are treated impartially in court and courts exist to check what the political branches do, is really the most important and unique part of our government. Democracy is essential, but you also need checks and balances. So all of the people at the Supreme Court -- Justices and clerks--believe strongly in the system. It is very important to them.

Question from JERRY: Hi Deborah, I read that Justice O'Connor is an avid golfer. Is it true she has played the Augusta Course where the Masters are played?

Deborah Merritt: She is in fact an avid golfer -- as well as tennis player and exerciser generally. I can't remember, unfortunately, about the Augusta course. I can tell you, though, about her energy and enthusiasm for exercise. Three of us who were hired as her clerks had originally been hired by Justice Stewart, who resigned shortly before we would have started clerking. We didn't know for sure if we would be able to clerk for Justice O'Connor until she was confirmed. After the Senate voted her confirmation, we were taken to meet this new Justice. She greeted us and indicated how excited she would be to work with us as clerks. She also told us we didn't have to dress so formally while working for her (I guess we had gotten a bit formal for that first meeting!) She was very pleased that we had brought with us the memos and other materials she would need to begin preparing for the Court's session. And (now I'm finally getting back to that exercise part!), she asked in this very first meeting whether there was an exercise class she could take part in at the Court! There was not, so my very first assignment as an O'Connor clerk was to set up an early morning exercise class for the Justice and others at the Court who were interested.

Question from JERRY: Deborah Merritt: It has been reported that Rehnquist will announce his resignation in a week or so. Do you think Roe v. Wade will be overturned after Bush names two Scalia like replacements ?

Question from Az: Everyone is so concerned that Bush will stack the Court in such a way that the Court will overturn Roe v. Wade -- but wouldn't that be political suicide for the Republicans in the long run?

Deborah Merritt: Several different parts to those questions--I'll try to take them one at a time.

Court TV Host: Jerry, if Robert Novak's "confidential source" is correct -- and we know how many problems he and his confidential sources can create -- that resignation might come within the hour!

Deborah Merritt: It's hard to know whether Rehnquist will announce his resignation (he has looked more healthy in recent photos), but of course it's always possible. It's very hard to make predictions about Roe v. Wade in particular. Since I had lost my clerkship with Justice Stewart, I watched the nomination process and confirmation process with great eagerness 24 years ago. Everyone then was predicting that Reagan's appointee would lead the way to overturning Roe -- and it didn't happen. The same concerns were voiced with every appointment by a Republican president since then. There are two reasons why it's hard to predict outcomes on Roe. One is that Roe itself is now precedent -- and judges have very strong feelings about precedent. This is another way in which judges sometimes write opinions that they don't "agree with." I can easily imagine several lower court judges who would not have joined Roe in the first instance, but who also think it is important to maintain the Court's precedents. They might not overturn Roe. The second is that the Constitution and legal principles sometimes look different once you're in the Justice's seat. This is what drives a lot of people crazy, because they want to be able to pick (or support) a Justice who will do exactly what they want at a particular time. But as people examine all the arguments and really get into a case, and, in particular, as they examine the facts of a single case before them -- which is what our legal system is all about -- they sometimes find that their views on the bottom line change. It's a good thing, rather than a bad one, that people sometimes are affected by reason, oral arguments, etc. That's what we have the briefs and arguments for! So in the end it is often hard to predict what a judge will decide.

Court TV Host: Any closing thoughts?

Deborah Merritt: First of all, this has been a great experience. I really enjoy the online format. The other is that I have really learned over time how important our judicial system is. I knew that when I went to law school -- or at least I hoped it was true! But I learned a lot of it from observing Justice O'Connor and reading her opinions. She is someone who has a very strong belief in the role of courts. That doesn't mean she thinks courts should do everything. She also served in a state legislature, worked with citizens groups, etc. Most good things in life are done by those organizations or by private individuals. But watching her, I saw how important the courts are for preserving liberties that we often take for granted. It really is extraordinary that we live in a society that allows so much free expression and individual choice.

Court TV Host: Thank you for being our guest today.