A Conversation with Justices Sandra Day O'Connor and David Souter (2018 Kennedy Library Forum)

[Applause] good evening i'm david mccain the CEO of the John F Kennedy Presidential Library Foundation and on behalf of my foundation colleagues and the library director Tom Putnam I'd like to thank all of you for coming this evening we count on your support and if you are not already I encourage you to become a member of the library please visit our website JFK library org for more information i'd also like to express particularly thanks to the friends and institutions that make these forms possible Bank of America which is our lead sponsor of the Kennedy Library forum series Boston capital the Lowell Institute and the Boston foundation along with our media sponsors the Boston Globe WBUR and neckin this forum will be broadcast on WBUR neck and the WGBH forum network and c-span we are honored to have with us tonight retired Supreme Court justices Sandra Day O'Connor and David Souter they are here to discuss their shared passion the importance of civic education just as David Souter recalls that when he was a boy he learned the lessons of democracy and the functions of the three branches of government at New England town meetings he's called those meetings the most radical exercise of American democracy that you can find didn't matter if someone were richer poor young or old sensible or foolish these meetings were governed by fundamental fairness today when two-thirds of Americans can't name the three branches of government a rebirth of civic education is needed to ensure as justice Souter has said that the nation has judges who stand up for individual rights against the popular will justice O'Connor is even blunter when only one in seven Americans knows that John Roberts is Chief Justice of the Supreme Court but 2/3 can name at least one judge on American Idol it's time to react 8 the American public Sandra Day O'Connor was born in El Paso Texas and spent her early childhood on her family's cattle ranch in Arizona she received her BA and law degree from Stanford University before settling in Phoenix Arizona with her husband she served as an Arizona Assistant Attorney General and in 1974 ran successfully for trial judge a position she held until she was appointed to the Arizona Court of Appeals she was nominated to the Supreme Court in 1981 by President Ronald Reagan and confirmed by the US Senate 99 to 0 she making her the first female in our nation's history to serve on a highest court justice O'Connor retired [Applause] justice O'Connor retired from the court in 2005 and has been known to refer to herself as just an unemployed cowgirl but as our moderator recently wrote in The New York Times justice o'connor basically lives in airplanes traveling the country in support of our causes let me read you one newspaper article that illustrates that commitment in september justice o'connor visited Wrigley Field in Chicago to attend a Cubs game wearing a royal blue Cubs jacket she delivered the game ball to the umpires on the field and then visited the broadcast booth where she delivered the following commentary I never thought I'd see the day when we stopped teaching civets and government now it could be a little boring how they were teaching it but nonetheless it is an important function of the schools and then justice O'Connor suddenly interrupted herself who big head out there you have to love a Supreme Court justice who jumps in to give the play-by-play at a Cubs game David Souter was born in Melrose Massachusetts he received his BA and law degree from Harvard University and was a Rhodes Scholar at Magdalen College Oxford before settling in New Hampshire where he served as Attorney General and on the state Supreme Court he was nominated to the US Supreme Court in 1990 by President HW Bush excuse me George HW Bush a moderator has also written about justice Souter just after he announced his retirement in 2009 she called them quote perfectly suited to his job his polite persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the case is relevant to it far from being out of touch with the modern world he is simply refused to surrender to it control over aspects of his own life that give him deep contentment hiking sailing time with old friends reading history these days justice Souter is doing some of the things he loves but he is also very occasionally speaking out about some important issues at a commencement speech at Harvard University this past May justice Souter spoke out about the different modes of constitutional interpretation Washington Post columnist EJ Dionne called the speech remarkable one which should become the philosophical shot heard around the country our moderator tonight Linda greenhouse who I've already quoted liberally is one of the foremost authorities on the Supreme Court reporting on the court for the New York Times from 1978 to 1998 she won the Pulitzer Prize in 1988 she now teaches at the Yale Law School in a recent New York Times op-ed about the three former justices John Paul Stevens Sandra Day O'Connor and David Souter she noted that quote their shared capacity for blunt talk and up tonight speakers she writes freed from the strictures of incumbency and the need to garner concur votes each is in a public position to help the public understand a bit more about how a Supreme Court justice thinks as well as about the Supreme Court itself its processes and its challenges with that in mind please join me in welcoming Justice Sandra Day O'Connor Justice David Souter and our moderator Linda greenhouse [Applause] well thank you it's a personal trill to be here really here in the Kennedy Library on the 50th anniversary of his election I was a young teenager at that time and I have to say that he did inspire my own interest in public affairs in the public life of the country and I remember my friends and I in school you know hanging on every development of the 1960 campaign and the startup of the new administration and that's a kind of a deliberate segue into our our topic tonight which is the civics education deficit in the country schools and it you know just kind of makes me wonder whether the same energy and enthusiasm with which I and my 12 and 13 year old friends back in 1960 approached what was going on in the country based on some knowledge of what we had been taught in public school whether that I still exist today so I'll just start off by asking both of you since you've made this really a project of your of the stays of your professional careers what motivated you to choose this topic as something you're really devoting yourself to we started public schools in this country in the early 1800s on on the basis and on the basis of arguments that we had an obligation to teach our young people how our government worked so they could be part of making it work in the future that was the whole idea that was the justification for getting public schools in this country and I went to school there weren't any out on the lazy bee ranch and so I was packed off to my grandmother in El Paso and went to school there and I had a lot of civics but it was largely Tex I got so tired of stephen f austin i never want to hear another word about him but i mean it just was endless but we had the alamo doesn't help us no no no I was in de San Antonio we were in El Paso so anyways we had a lot of civics in my day and I guess I just thought that was what schools were supposed to do and I was stunned to learn that half the state no longer makes civics and government a requirement for high school no longer and we had a lot of concern about what young people were learning and I can understand why some of it was getting boring the leading textbook for civics was 790 pages long I'm sorry you can't give that to some young person and expect them to just read it and absorb it it doesn't happen so I thought we needed a little help and that's how I got involved and you recruited your colleague well yet he got me into this I mean really she did the I I didn't have anything of a sense of what was going on in civics teaching in the United States I remembered mine but five or six years ago justice O'Connor and Justice Breyer convened a a conference in Washington excuse me to address the threats to judicial independence which seemed to be snowballing at the time and the the most significant thing in the most shocking thing I think that I learned the first day that we were there was the statistic that you've already heard this evening that depending on who doesn't measure it only about two-thirds at best 60% of the people in the United States can name three branches of government they are simply unaware of a tripartite scheme of government and set raishin of powers well the implication of that for judicial independence is that if one does not know about three branches of government and the distinctive obligations of each branch then talking about judicial independence makes absolutely no sense whatever independence why independence from what independence for what reason you get absolutely nowhere because there is not a common basis in knowledge for discourse and when when I and others left that meeting we realized that you know we had a lot to worry about on attacks on judicial independence but we had a broader problem worried about the United States and I have only become more convinced that it is a serious problem not a kind of chicken little problem or a reflection of the nostalgia of dinosaurs for the way government was taught when we were we were kids but my my awakening started at that conference on judicial independence now there's one other little part of the story that was disturbing I thought American high school students were tested along with those of about 20 other nations a few years ago and they were they came in near the bottom of the 20 nations in scores on math and science and it was so frightening that our prison are then President and Congress said we have to do something well you know what that means money federal money so they put together federal money to give to schools based on good test scores in those schools for math and science and they tossed in reading you're talking about the No Child Left Behind no child left behind you've heard of that and that was the program and no doubt a good thing but the problem was they it turned out that because none of the federal money was given to teach civics for American history or government the school started dropping it and half the states today no longer make civics and government a requirement for high school only three states in the United States require it for middle school I mean we're in bad shape and we need to do something well you are doing something right yeah but I the the relevance of No Child Left Behind today I think is is indicated by what justice O'Connor said we've got a kind of testing culture in America's schools which is all the good on subjects of science reading and math which are being tested the effectiveness I don't know but the objective is is obviously okay the trouble is that as everybody says schools have a tendency to teach to the test and if if finances or educational ratings or other other sort of measures of decency and excellence are going to be tied to the test on these three subjects the natural human tendency is that everything else is going to get short shrift and and I think we we have to be careful not to suggest that that No Child Left Behind is the source of the problem because American schools started dropping teaching of civics as we remember it back I think around 1970 there was there was a series of conclusions drawn by educators the effect that teaching civics really had no effect in fact on what people what young adult people ended up knowing about their government this seems counterintuitive but that was the theory and astron that's why civics started getting dropped the problem with No Child Left Behind for for those who want to revive revitalized civics education is you got to find some room in the school day to fit it in and your competitor is in effect No Child Left Behind and the subjects which are getting tested that suggests an ultimately pragmatic solution and that is you better start testing guns on civics right and the the only good news I I guess in this particular tension is that there isn't an absolute tension between fulfilling No Child Left Behind and finding the time Pacific's the the fact is a lot for example of the the material that can be used for they will call it the reading segment of No Child Left Behind can be civics reading not 700 pages of a gulp but there's there's a way to there's a way to infiltrate No Child Left Behind with some civics so it's not it's not an absolute opposition but the the problem has got to be I think face of how you provide an incentive to the school administration's in the school districts to work this in and I use the the reference to to administration advisedly because one thing I've learned just from being on a on a group in New Hampshire that is trying to beef things up up there is that the civics teachers are out there and they are dying to teach and I happen to have met some both on the grade school level in the high school level and you know they're raring to go we do we do not have a problem of conversion among teachers and what what we've got to do is find a way to find room in a finite school day to get this done and as I said at the at the end of the line we got to have that people like to use the word testing anymore they like to talk about account ability and but we got to get a civics test squeeze back in and you're directly involved in in a curriculum reform effort in New Hampshire's that yeah tell us a bit about that well he I'm on a johnny-come-lately to it in a way because it was a group formed by an organization called the New Hampshire Supreme Court Society which is a somewhat of a Historical Society but a of the New Hampshire Supreme Court but a society that wants to have some public relevance beyond even the the teaching of history and it took up as a project before actually before I had retired a review of New Hampshire curricula practice and the question is there something useful we can do and that process of examination as I said I I joined up when I when I left Washington and I have at this point a fairly good sense of what is going on in New Hampshire schools and I said I've met some teachers I've actually I met I've done a bunch of kids if some classes I've gone to so and I think by the way to do just not leave the subject hanging what a group like mine can do and what I suspect a group like mine can do in probably most states is not convinced teachers that they ought to teach civics that's there I at least in New Hampshire experience we don't we'd have to sell them on that what we have to do is provide in effect the whole teaching apparatus and incentive to make room for this and the second thing we got to do is provide them with some materials to teach from there there is there simply is not readily available standardized universally accepted textbooks of the sort I think I remember of course there is no there is no testing New Hampshire like most states dropped testing from civics and we've also got to provide if we can do it and raise the money to do it a kind of continuing education scheme for the teachers of civics to get them together very much like what the Supreme Court of the United States's Historical Society does for teachers of constitutional history and and give them some beefed up education of their own which they are dying to have and so that's where I think we can do something useful and my guess is that what is missing in New Hampshire and what would be accepted by the educational systems in New Hampshire is probably going to be true in most states so the effort would be to kind of model some best practices that could be exported well I've got another idea make sure you do well you understand why we were right concurring opinions all right I think young people today like to spend time in front of computer screens and videos and in fact they spend on the average 40 hours a week doing that if you can believe it that's more time than they spend with parents or in school and so I think we have to capture some of that and I've been have organized a program to do that and to put the material for civics education in a series of games that kids can play on computers and believe me they love it and if you ought to look at it and if any teacher wants to look at it it's WWI civics org and it is if I have to say so fabulous I really I actually in preparing for this I went I have heard other people say that to that well justice Souter doesn't actually have a computer so this is all of life so he's gotta know about that's why I said other people but I did go on the website and it's really it's very engaging and it comes with curricular guys so that teachers can use it as as real material I went on the one about judicial system and it's a series of actual Supreme Court cases where there's ways that you click on the various arguments and students are asked to pick the best argument to support such as such a proposition and it's really I thought myself couldn't really getting into it so it's really a success I think and can be accept do you know what the worst bureaucracy in our country is today it's the school's there in 50 states there is not one state where there is one person in that state who can tell the schools what to do and they have to do it not one we are organized with separate individual school districts we have close to a you know many hundreds in my low state of Arizona and so to get something like this conveyed to Ola schools means you have to contact each one and it's kind of a nightmare that's what we're running into with my program how do you get everybody acquainted so I have chair people now in 49 of the 50 states now whether they'll succeed in contacting all the schools remains to be seen maybe you can volunteer let me hear from you how closely we have you been involved in actually doing the gaming and the deciding what needs to well I have actually sat with some and previewed some and made suggestions on some I mean I've not we have experts like MacArthur Genius award winners better at doing this but I have participated in some to figure out what we got to do or not do justice souter talked about the impact of the deficit in knowledge about the course and obviously that's that's one thing hi are there other particular deficits that you've noticed as you've talked to people or followed this issue in knowledge yeah oh it's total they know to start with they don't know they're three branches of government we've already covered that and even if they do had a courts work what do they do who is in charge and how do they approach cases in the case of Congress they don't know how things happen and you have to either well not much does I guess but now and then there's a little trickle down somewhere anyway we know it's supposed to happen right and so there's a lot to teach a lot to learn and things really you know things really have changed again from the time when when we were kids when I say things have changed not merely the dropping of teaching but the the resulting deficit the one at one of the difficulties in at least that I've found in trying to put all of this in perspective is that we have much better studies about what's going on today than we had about what was going on 50 years ago people weren't making the same kinds of surveys or at least I haven't run into them but I I have been impressed with with one summary which went through a series of rather detailed survey findings in the mid 90s and the conclusions to be drawn from it were was summarized by by one of the educators in the field men at William Galston in the following way he said that the the the numbers seemed to show that the degree of civic and bro political knowledge on behalf of a high school graduate in the mid 90s was equivalent to that of a high school dropout in the 1940s Wow and the degree again of comparable knowledge of a college graduate in the mid nineties was about that that was about at the level of a high school graduate in the 1940s and if anything needs can further be said to underline what is shocking and dispiriting about that is bear in mind that during this same period of time the growth in the availability of higher education was explosive and and yet in effect what we've had is the is the level of collegiate knowledge dropped to high school and high school drop to drop out something really bad has happened in in preparing for this I've kind of cast a wide net and tried to find some other resources that are out there just to get a sense of how broadly this problem is being recognized and there's actually there's a lot going on oh yeah I noticed that on Richard Dreyfuss the actor has weighed in on this with he said something up called the Dreyfus Initiative which is the curricular development program I looked at that website and then on the judicial system in Maine a coalition of the federal and state judges they're organized as the Maine federal state Judicial Council has started a program of video interviews of judges talking about their life and work basically and it's it's really engaging they had one judge a state judge and I can't think of this name we've talked about being a troublemaker in high school and dropping out of college and taking a long time to get his act together and eventually obviously becoming a judge but the point was to to make the judiciary not seeing something remote you know people are born with the robes on or something but to give citizens the sense that these are real people doing a job for the public who are you know more or less approachable and it could be sort of understood on a on a human level and I wonder well just looking at the Supreme Court for instance that we seem to be in an era when a number of Justices on current as well as retired are out and about and making the court maybe a little more accessible and and you've both been around long enough to to see that as a trend this wasn't something that was so true and when both of you became judges and I just be interested in your reflection on whether there's anything that the Supreme Court itself either institutionally or as individual justices can can do to address this well it was interesting because I'm not in Washington DC all the time anymore just now and then and I recently was there and I sat in the courtroom to watch an oral argument and I sat there and looked up at the bench nine positions and it was absolutely incredible on the far right was a llama boom boom boom near the middle was a woman on the far left was a woman three of them now think of it it was incredible and that took you know it took to 191 years to get first and we're moving a little more rapidly now I was pretty impressed well heck look at this group here I'm here at the diversity [Laughter] [Applause] so things are happening so sort of extract from food or extrapolate from from what you said so there was the court being able to sort of model well I just think that the image that Americans overall have of the court has to change a little bit when they look up there and see what I saw I thought that was a pretty big change of course not too many people get the chance to actually south or not captures everybody I'm here if you're some of the court here we are on on c-span and you know Suzanne has kind of a dog in that in that fight around when did you bring the court into the living roots of America a fight which I hope c-span loses well but uh looking looking at the election this fall on some of the judicial issues for instance what happened in Iowa we're sitting judges were thrown out and their retention okay now that is another subject on which I've been trying to be helpful how we select state court judges now this is a really important topic and it seems to me that many of the states need to consider some changes when we started out the framers of the Constitution got busy and designed a federal system and when they came to the judicial branch they provided that the judges would be appointed by the president with the advice and consent of the Senate no election of the judges right no election and the original thirteen states all had similar systems I mean closely related to that no election now a few years went by and all of a sudden we had Andrew Jackson and he saved us down in New Orleans that was good but you know what he did he didn't he thought we should elect our state judges and he was the one who went all through the thousand said now you ought to change an elector judges the first state to do that was Georgia a bunch of others followed suit and now what do we have we have this odd fudge and many states I make about 20 still have popular election of state court judges and that means campaign contributions they run for office they have to get money who gives them money the lawyers who appear before them some of the clients that appear before them there was that case that the Supreme Court had cabled in the coal done from West Virginia big judgment against Massey coal company 50 million or something of the sort and the chairman of Massey coal wanted that judgment was in a trial court in West Virginia and in West Virginia they just have two levels of Courts the trial court the Supreme Court and Massey coal wanted to appeal to the Supreme Court well s fine it's a five-member Court and there was going to be an election at the next general election and one member of the court had to run for office is tamas oh well Massey Cole's chairman gave the man about three million dollars to help with his election campaign in the little state of West Virginia and guess what he won you know big surprise and then the case was heard and somebody on the other side said to the re-elected justice well maybe you should refuse yourself because of these camp odo I can be fair so he heard the case and in a three-to-two decision did not over he voted to overturn the judgment against Massey with the participation three to two decision of this newly elected judge and the other side then filed a petition with the US Supreme Court saying we were denied due process here now that's a hard plane to me I'm glad I wasn't sitting on the court for that case that's tough but the court ultimately decided that was correct there was a due process denial and that means that states are going to have to be a little more careful about how they organize their courts and that was the right signal to stand but many states still have their election of judges and that's not a good idea I would like to see more states adopt what we call a merit selection system where there is a bipartisan citizens Commission formed that will receive applications from people who want to be a judge we view them interview the people make recommendations to the governor who can appoint from the list of recommended people and then typically in these systems they will serve for something like six years and then have to stand for retention election and they can be ousted and that's what happened on Iowa their Supreme Court is a merit selection system Court and three of the justices were up for retention election the court had unanimously decided a case involving a gay marriage law and it irritated some voters in that state and they campaigned against these judges with the retention and a majority of the voters voted them out they said no we don't want to keep them so that was a big signal yeah I wanted to ask you about that because the the so-called Missouri Plan the Mara selection and retention that Iowa has has been held up for years by you and others as the preferable way to go and of course what happened in Iowa I mean yes some voters didn't like the outcome of the same-sex marriage case but what I think kind of more to the point outside groups came in yeah to use the election to teach a lesson so I teach already spent a lot of money the judges running for retention had never encountered anything like that and they didn't do much in response yeah they were so caught the problem flatfoot so is it it raises a question in these days of you know very aggressive money Laden judicial campaigns whether the Missouri plan still holds up as a Civic Improvement or does it does and Arizona has it and I watched the progress there it doesn't mean you can't have a problem you can but it is so much better than the alternative you can't imagine but it tells me that you have to beware and if there's something like what happened in Iowa those who are hoping to be retained better be active and better do something in response so they need campaign committees and then evaluation if there's going to be a major effort to see them yes so you're kind of back in the soup I mean it's no not as bad because you get over the hump and then go back to where it was but it's not going to happen every time just to draw a link between that sort of problem and what we were talking about earlier I mean do you think that if the public has a better understanding of the role of the judiciary through some kind of education that this sort of thing could be mitigated in some way or if an issue is hot enough does it just kind of overwhelm well occasionally there will be a hot issue and in our country it tends to turn on abortion or gay marriage or something like that and voters can get pretty excited about some of those issues justice souter Uemura state judge for years in your career now you were appointed yes I was I was blinded Yeah right and without a retention election so New Hampshire is just plain old yeah essentially it's the federal system except there is a mandatory retirement in New Hampshire but so I I didn't have to face that but I you know I wouldn't agree with justice O'Connor that if you're going to have an elective system try to have the Missouri plan that's the best way to you you still can't make the silk purse out of the sails a year but at least you're along the way a little bit the the Missouri plan and then any system even with retention elections is is in tension with the sort of the the the fundamental understanding that animates an appointive system with life for a long term appointment and that is the understanding that when the heat is on we tend to do the wrong thing we get excited our judgment evaporates and that is why you want a branch of government which has reference to principles that are going to endure beyond the heat of the moment to say wait a minute you just violated your own rules and if you cannot have a branch of government with the power to do that and with the incentive to do it knowing that those who make the declaration will not be thrown out on the street the next morning you in fact are compromising the very concept behind a rule of law and a rule of enduring law so that's the fundamental problem even under a Missouri plan the the the development that has exacerbated that problem is the development of money in judicial elections which has in its turn been exacerbated by the the recent development in the law which took place after both justice o'connor's in my departure but on which we had expressed opinions earlier to the effect that corporations cannot be limited in the kind of expenditures that they make for political purposes and if that were not sufficient exacerbation that combined with the legal avenues now for disguising the sources of political contributions makes for a very general threat to political integrity and and a particular one to the judiciary how does one respond how does the judiciary respond to that why don't the judiciary is a political entity can't do anything about it but there is one Authority that the judiciary has got to start think of you thinking of using because I assume the occasions are going to arise I think back for a second to justice O'Connor's reference to the to the West Virginia election case the reason that case in one way was easy to focus with the reason the issue could easily be focused was that it was a matter of public record where the three million dollars came from it came from I forget the president of the chairman I think he said of the company which was appealing the very large verdict against it what does the litigant do now in a state with elective judges when in effect as a matter of federal law all the limits are off on what corporations can do and in fact there are avenues for contribution which do not disclose the ultimate source of the money it seems to me I know what I would do if I were a litigant kind of a situation I would I would require I would I would demand in the name of due process a disclosure of all sources of contributions to the judges on that court before which I was going to appear and an analysis of the sources if in fact the name source was one might be opaque and I think it's inevitable that this is going to come and I don't know really if anything that litigants can do in the name of due process short of this unless they are willing to take the chance of sort of just being a fish getting shot out in a barrel and they don't know who's firing I I think this has got to come where this is leading I think I given the current Supreme Court majority's view of the First Amendment is a clash between the First Amendment and due process which I mean your your right but you know I this over simplifies a little bit but not by an awful lot most of the constitutional issues that come before the Supreme Court of the United States are not questions of should we apply this principle as it logically ought to be applied but rather questions of should we apply this principle that might apply or that principle that might apply the the the essence of principled decision-making by a court like the Supreme Court of the United States is in the reasoning that selects the principle that is going to predominate in a given case principle decision-making isn't simply being logical it is being reasonable in selecting from among legitimately competing principles and were as you say Linda we're going to see that as between the current view of First Amendment rights and an enduring view of due process rights so it's a question of whether the current majority is willing to follow the logic that they took on the path they set out right over a cliff players don't have to ask them but I mean you see really seriously though the the the path that they have followed in in the recent cases simply has has not encountered the issue that we're talking about here bear in mind that the same supreme court that decided citizens united it's also the Supreme Court one personnel change to the different from the court or well at this point to personnel change is different it's the same court that decided the the West Virginia of contribution case so you've got a court which has quite clearly and and robustly espoused both the principles this isn't the non due process Court any more than it's a non First Amendment Court Justice Kennedy in the majority in both those cases and the so so this this is this is a court which has not shown itself shy of confronting either due process or First Amendment issues and I have no reason to believe it's going to be shy about being candid about how you resolve the tension when that tension gets to them just on a personal level I mean accursed me listening to you what's it like having been on the court for a good chunk of time I to watch them obviously you feel a mistake was made in Citizens United I what does that feel like when you feel only I've been at the conference table maybe I could have made a difference listening a strange feeling to be on the outside looking in after all this but you have to accept the fact that people are going to be serving there for different periods of time you're not going to be there forever and other people may disagree with some of the things that you have believed so you just can't approach it from the standpoint that you will never be disappointed or concerned it's very possible you will but that's life this is there's one possibly radical answer to your question Linda and it comes from the old psychiatrist joke about the young and the old psychiatrist who talking at the end of the day and the the young psychiatrist Asian of his PI has been pulled open and he looks exhausted and harried and the older guy looks as fresh as he did at nine o'clock and the young the young doctor says you know how can you seem so fresh how can you stand it listening to these patients all day long everything is wrong you sit there listening to them why doesn't it get to you and the older doctor says oh he says that's the secret who listens maybe maybe that that maybe that maybe one answer for retired Supreme Court justices you know don't fool them who watches ya that there's none that has not been any solution that either of us has followed but I think you're feeling a little liberated I'm not liberated from really but liberated - I mean I'm playing as I Berlin here I guess I I I had no desire in one way to leave the Supreme Court I loved my colleagues I liked the work that I was doing there were days when I wish things had turned out differently but I still loved the court and just about everybody in that building but I feel liberated to do things that I couldn't do on that Court it is it is confining in time as well as in discretion and there were other things that I wanted do while I was still in a condition to do them so so I'm unliberated to do things rather than liberated from things that I disliked because I didn't do wise a better way to put it well I know people in the audience have been writing down questions and this may be a good time to turn to some of them if they're already do we have send questions and Amy anyways I don't have a set of them and I'm sure we'll collect more a fountain to work okay and you have some man who's trying to hand yourself down okay do you think any of the decline in enthusiasm for civics results from a change in the rhetoric of the purpose of government that is today the focus is much more on privatization enabling a free market so I guess that means we don't hear much talk about the higher purposes of government maybe is that there's a lack of operation I don't think that's what I'm hearing out there I think it's the fact that you have young people who aren't learning anything about it and so it's not unexpected that there's not much discussion or concern yeah I would I would say the same thing and it again historical perspective helps hear this decline started 40 years ago and it wasn't I hope I'm not going on a limb here I don't think it was until around 1990 and into the 90s that people began to say hey wait a minute is something going wrong here and the the the unfortunate state of public rhetoric in the United States had not reached anything like today's characteristics at that time and I've also looted a moment ago to the fact that I've seen a good many civics teachers in the last year and I've seen some of the kids that they teach and I just give you two examples I listen to a fourth-grade class from one of the New Hampshire towns it was visiting the Statehouse one day and I happen to be around and that that town happened to be blessed with with teachers in the fourth grade who had themselves enthusiasm for teaching and you know the kids were a bunch of winners they knew more they I listened to the governor asking the questions to find out how much they knew those kids knew more about civic organization in the fourth grade than I knew in the fourth grade and you know the arms were going out of the shoulder sockets and trying to answer the questions it was terrific ed and I I visited a combined a couple of high school classes in my own town again they were blessed with with a couple of teachers who were real Sparks and I mean they they were gung-ho so I don't I I don't have any reason to believe that the lamentable state of public rhetoric in the United States is is going to be a itself a roadblock to educational reform no thankfully here's the question that's maybe somewhat related isn't is the decline in the teaching of civics related to a general decline in educational standards some would argue that in 1935 high school diploma is the equivalent to a 2010 college degree well I think there is a decline I would share some of that concern I think that at an earlier a period in our history a great deal more was learned in the early grades than is today and we've just kind of diluted it as we've gone along I'm going to take a pass on that I don't I don't know enough to answer that question here's a question is it reasonable to think that states as divergent as Massachusetts and Texas can be brought to teach a common civics curriculum good question I think it's possible but you may have a hard time on certain principles like how should you organize the courts in Massachusetts you don't have the popular election of judges in this state you've got a pretty decent system and there are long term appointments and in Texas you know I was born there and I've spent time in Texas and if you're a lawyer and you have a trial in a Texas Court the first thing you have to do is go do some research on the judge and try to find out how much money the judge has been given by whom to get elected there are a few records and sometimes shouldn't find out some of that that's what you have to do and then you have to meet or exceed it or you're not going to get a fair hearing in the judges courtroom it's pretty sick now why would you want a system like that and I've been to Texas to talk to him this at the legislature to see if they wouldn't be motivated to propose a change in their system nope thank you we like a dilatory discouraged it's hard to think that the what is it the Texas Railroad Commission or whoever makes the curriculum there would don't include in the curriculum any criticizing I kind of says there are lots of decent teachers and willing students and everything else in Texas a lot of good things but I don't think their system of judicial selection is ideal but going just going to the the implication Pacific's teaching I am guessing that one of the things that I am going to see that we are going to see if the efforts to beef up teaching in our respective states begins to pay off is a contrast between the teaching materials of our day and the teaching materials that are going to be used in in the future we had I remember the book in the ninth grade the the blue civics book and it may have been do you know it's pablum but it was pablum that got a lot of basic factual material on the page and we left I think pretty much with that in our heads the notion I think of a generally acceptable textbook of that sort today on the national level is antique my guess is we're not going to see such a book what we are going to see is I think a combination of what is going on in in those schools that are teaching civics today and that is an awful lot of that material is getting downloaded and is then getting exchanged teachers to teachers there's a decentralization of text going on and I would be very surprised if that particular decentralization trend is going to change here's a question how can we get schools to choose to read six and their curricula when they say they don't even have enough time or money to teach math and literacy well and the writer the questioner works at discovering justice a civic education organization here in Boston she poses a financial question well it's hard but that's why I am enthused about a program that can be used by kids on their own that they love and are having fun and they're going to learn from now that's one way to help get around it and I'm excited about that I think there are two answers to that question one is one is sort of the fundamental value answer and the other one is the pragmatic how to do it answer the fundamental value answer is is something that I guess has been lost from the discourse or the consciousness and people like us and people who take up this cause in other states it's simply got to keep stating it and they've they've got to keep pushing it and it's basically this in the aftermath of famous quotation in the aftermath of the 1787 convention Benjamin Franklin was asked what kind of a government the Constitution would give us and his famous answer was it will give you a republic if you can keep it republics can be lost Jefferson made the remark that a a people both free and ignorant has never been seen and never will be there has got to be a component of knowledge and understanding if democracy is going to survive and when two thirds of a nation do not know the basic simple structure of their government when six out of ten people adults in the United States cannot answer questions which would once have been appropriate for schoolchildren then we are getting to the point of the Franklin and Jefferson source of worry if ever we were in a position of worry it is a greater worry today than at any other time in our lives there has been no time in my life or our lives in which the degree of frustration with government and dissatisfaction with government has been as great and as volatile as it is today the responses to that frustration and I a frustration by the way which I think probably everyone on this platform also shares the response is to the D frustration have not been merely political responses throw these bums out and bring in someone new the responses have included suggestions for structural change you have heard the suggestions for constitutional amendment and they go even so far as modification of the 14th amendment when that kind of possibility is being routed around in the public discourse we have got to be very very worried about the inability of a majority of the population to understand the structure of what we have from which follows the location of responsibilities within the polity and against which has to be measured any proposal to change the the proposals for change like most moral and political questions are not or cannot intelligently be looked at as simply a question would it be a good idea to do this and so these invariably are whether or not they are recognized as such these invariably are questions is this proposal something which would be better than that while that which we have the the fundamental nature of these moral and social political questions is compared with what and if you don't know if they if if the the vast majority of the polity do not know what we have now it is impossible to expect that in inform by definition and informed judgment can be brought to bear on proposals for change and that is why it is not Chicken Little to say we have got something to be worried about seriously right now about the continuity of constitutional government as we know it in the United States the pragmatic how to do it answer to the question is we've got those of us who are beating the drum like this and who are on Commission's like the one I'm on in New Hampshire have got to be very practical in helping people who would like to do the right thing find the way to do it I mentioned one sort of mitigation of the cons between the testing scheme and the non-tested subjects and that is get the non testing subjects worked into the reading curriculum which is a tested subject I personally think I think most most educators they think that in in order really to to compete with the pressure for testing if it persists you're going to have to have some testing and civics we used to have it we used to in my state I presume we did in most states but we don't now and I've been over trying to promote some changes in the No Child Left Behind and Congress is not apparently going to entertain them oh no I well I should say oh no no but but we've got to make I mean people like us have got to make a two-pronged argument we've got to make the argument clear on why this is not funny why we have got something to worry about in the United States of America today and then we've got to be pragmatist and say okay if you if you want to do what we're pushing for get testing back in on the on the state level get this reading material into No Child Left Behind or even consider cutting back on some other things that may not be as fundamental to the to the political stability of the United States a civic education that's right so just to make sure I understand the the basis of the urgency that you're speaking from it's not that the people who are coming up with these ideas are lacking in civic knowledge is that the population as a whole lacking of a correct lacking in it is vulnerable to kind of manipulation yeah correct right that's it what we don't have we don't have a broad basis for critical judgment in the United States today when two-thirds of the population don't know the fundamental structure of the government question what do you believe are the three most important pieces of knowledge that American students should possess about our government you can come up with three between you you go you go ahead oh well like you know I'd start with how's that organized what are the free branches what do they do how does it work out of citizens get to know about them and participate I mean these are the fundamentals that we would hope would be taught in the classroom yeah I mean the I I agree know at least the basic structure three branches to have an idea of what those three branches do I've listened to fourth grade classes who can answer those two kinds of questions fairly well so it's not an overly ambitious agenda and and I I guess the the third thing I would hope people would know about government is illustrated by a story that a friend of mine told me the lawyer in New Hampshire and a very close friend of mine and he was visiting some New Hampshire school on law day once this is back ten to 15 years ago and the the subject of the the exclusionary rule in criminal cases came up the rule that if the evidence is illegally seized seized in violation of constitutional standards it may not be used by the government in its case-in-chief against a criminal defendant and and some kid in the classes of junior high probably high school I guess said the the basic question why should the the public interest suffer by letting some criminal go free because a law enforcement officer didn't get a warrant and and my friend Bill Klein said that his response to the kid was because you're next and the if there is any one fundamental principle of good government it is the principle behind the exclusionary rule and other constitutional limitations and ultimately it is the golden rule treat others the way you want to be treated with the corollary that if you don't you're not going to be treated that way either if you had to erase everything in the United States Constitution or the let's say the Wrights Constitution is supposed to the structural Constitution you could leave one thing the one thing I'd leave would be the equal protection clause we are in this together and we are all going to be treated the same way if that were understood I take my chances on on substantive outcomes and and that is that is the fundamental lesson I think between behind governments of powers that are limited both structurally and for the sake of individual liberty so that would that would be my third lesson and I'll I'll put it in the terms of your next well put no further question could top that seriously so I'm going to thank you both for being willing to do this thank the audience [Music] [Applause] you [Applause]

Channel: JFK Library

Views: 3,693

Rating: 4.7894735 out of 5

Keywords: John, F., Kennedy, Presidential, Library, and, Musuem, politics, sandra, day, oconner, american, history, david, souter, supreme, court

Id: 8iBlJDqDa0w

Length: 70min 1sec (4201 seconds)

Published: Fri Apr 06 2018