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CNN Live Event/Special

Broken Government: Judges on Trial

Aired October 28, 2006 - 20:00   ET


JOHN ROBERTS, CNN HOST: Thanks for joining us on "This Week at War." I'm John Roberts reporting from Baghdad.
Straight ahead, a check of the headlines, then "BROKEN GOVERNMENT: JUDGES ON TRIAL." A look at how politics play a role in the higher court.

MICHAEL SCHIAVO, HUSBAND OF TERRI: And see Terri and be with her in these last hours.

UNIDENTIFIED MALE: Hail Mary, full of grace...

UNIDENTIFIED MALE: The lord is with you.

NARRATOR: By the time of her death, she had become a cause.

UNIDENTIFIED MALE: The entire federal government is powerless.

NARRATOR: And the very public anguish over a young woman named Terri Schiavo went far beyond anger.

CROWD: Give Terri water. Giver Terri water.

NARRATOR: Far beyond the protests.

UNIDENTIFIED FEMALE: I'm proud that my children were arrested for having love and compassion. So I don't apologize for that.

NARRATOR: The battle drilled deep into a national debate on the right to die. And it took the nation into unchartered regions of politics and the law.

REV. FRANK PAVONE, NATIONAL DIRECTOR, PREISTS FOR LIFE: Unelected judges begin to chart the course of the nation for us, implementing policies and committing actions that offend the vast majority of the American people.

NARRATOR: It's easy to forget how it began. She grew up in suburban Philadelphia as Teresa Marie Schindler. Married her first boyfriend, a restaurant manager named Michael Schiavo.

On a February morning in 1990, while her husband was sleeping, Teri collapsed in the hallway of this apartment building.

SGT. PHILLIP BREWER, ST. PETERSBURG, FLORIDA POLICE: He said that he either awakened to the sound of a thud or had just awakened and then heard a thud, thought his wife may have fallen. NARRATOR: Michael Schiavo called 911 and his actions set the course of the next 15 years.

From the beginning, it was Michael Schiavo who dictated the treatment for his wife.

Her parents, Robert and Mary Schindler were consulted, but never in charge. Michael took Teri to California, then back to Florida searching for treatment for anything that could ease or even reverse her condition.

Eight years after her collapse in 1998, Michael asked the court for permission to remove his wife's feeding tube. She was, he said, in a persistent vegetative state.

But her parents disagreed -- disagreed stridently. She could smile, they said; react, they said. The battle was joined.

Ultimately, standing right in the middle was Jay Wolfson.

You represented Teri Schiavo herself?

JAY WOLFSON, ATTORNEY: That was my job, to represent Mrs. Schiavo.

NARRATOR: Wolfson is an attorney and a Florida public health specialist. He was appointed by the court in 2003 to try and arbitrate between the warring families. He had a special title called guardian ad litem, a guardian at law. And he would decide if Michael Schiavo's actions corresponded to the last known wishes of his wife.

What did you do?

WOLFSON: Well, first, I was charges with summarizing the entire legal and medical history of the case. So I had to gained access to all the documents. And I went to the courthouse just about every day.

NARRATOR: In boxes, through thousands of pages.

WOLFSON: Thirty thousand pages.

NARRATOR: You reviewed 30,000 pages?

WOLFSON: I touched and looked at every single of those 30,000 pages.

NARRATOR: Jay Wolfson's report would be crucial to any final outcome.

WOLFSON: My job was to, as objectively as I could, using the science and legal knowledge that I have to understand what the history of her case was and to answer the questions that the governor and the court had posed.

NARRATOR: Their encounters were more than analytical. In a strange way, he says they were emotional.

WOLFSON: I would talk to her. I would play music for her. I would sit next to her in the bed. I would hold her head in my hands. I would stroke her hair. I would get as close to her face as I could. I would talk to her. I would beg her. I would cajole her to help me help her. Because I walked into the room wanting to show that there was something that I could do to demonstrate that Mrs. Schiavo had clear capacity.

NARRATOR: Did you ever get a reaction from her?

WOLFSON: She frequently moved her head like this, which is what many Americans saw on video snippets. She frequently made groaning noises. She frequently made sounds that sounded like laughter, that sounded like crying. And all of those behaviors are completely consistent with the technical medical definition of a vegetative state.

NARRATOR: And at the end of those 30 days he said he reached the only conclusion he could.

WOLFSON: It was clear and convincing that she was suffering from a persistent vegetative state, the cause of which was undetermined.

NARRATOR: But that was not the end. Nearly two more years would pass before the events of spring 2005. Court after court ruled in favor of Michael Schiavo and against the Schindler family.

But around the country in evangelical churches, ministers began to mobilize, pressuring the lawmakers and the judges.

REV. GARY CASS, CENTER FOR RECLAIMING AMERICA FOR CHRIST: Over 100,000 people signed our petition to Governor Bush asking him to intervene. And we tried very hard in the last few weeks of her life to lobby the legislature in Florida to pass some bills that would make saving Terri's life completely unequivocally legal, rather than just leaving it in the hands of the courts.

NARRATOR: And for a time, it worked. But Michael Schiavo finally received permission from a Florida judge, Judge Greer, to remove the feeding tube permanently.

As she lay in a hospital, not far from the apartment where she first became ill, crowds began to gather. And the pressure grew.

REV. PAVONE: What is happening here is a monumental disaster for our nation and for civilization.

UNIDENTIFIED FEMALE: I have several people here that wanted to talk.

MARY SCHINDLER, TERRI SCHIAVO'S MOTHER: A runaway justice system where judges to legislate from the bench in favor of death.

NARRATOR: The courts were under attack. The threats were thinly veiled. REV. PAVONE: I'm tired with hearing the executive and the legislative branches of our government say, well, the court has spoken and there's nothing we can do. Yes, there is something you can do. Use your own authority given to you by the Constitution to protect human life.

NARRATOR: This hospice, where Terri Schiavo spent her final days, is quiet now, of course. No demonstrators, no police, no media anymore. But the political, legal and even social aftershocks linger. Especially the last-minute attempt by some republican leaders in Congress and President Bush to overturn judicial decisions in the case, actions that drew notice at the highest court in the land.

Did that trouble you?

SANDRA DAY O'CONNER, RETIRED JUSTICE OF SUPREME COURT: It did. Because it was asking for review of one specific case.

NARRATOR: Next, the Congress steps in. And even the president becomes involved in the Schiavo case. And much more of a rare on- the-record interview with former Supreme Court Justice Sandra Day O'Connor and sitting Justice Stephen Breyer.


UNIDNETIFIED MALE: Look out. Back up, back up, back up.

NARRATOR: Watching the protests edge toward confrontation, watching senators hundreds of miles away on Capitol Hill.

SEN. JOHN CORNYN, (R) TEXAS: It causes a lot of people, including me, great distress to see judges use the authority that they have been given to make raw political or ideological decisions.

NARRATOR: Watching it all unfold on television was Michael Schiavo.

SCHIAVO: It made me angry to see what these people did. I mean, I sat there and I watched Congress convening over my life.

UNIDENTIFIED SENATOR: Her legal guardian, that's Terri's husband.

SCHIAVO: When just a week before that, they couldn't even tell you who Terri Schiavo was. They didn't even know how to pronounce my name.

SEN. SAM BROWNBACK, (R) KANSAS: The life of Terri Schiavo that she will have.

SCHIAVO: So what business do they have of discussing that?

NARRATOR: Finally, on Palm Sunday, March 20th, 2005, President Bush took action. Interrupting his vacation in Texas to fly back to the White House. The purpose? To sign into law a bill designed to affect a single American -- Teresa Marie Schiavo.

BOBBY SCHINDLER, TERRI SCHIAVO'S BROTHER: They recognized that Terri, who was sentenced to death by dehydration and starvation. They recognized that someone on death row had more protection than she did.

NARRATOR: At 1:14 a.m., with no television cameras, no photographers to record the event, the president signed Senate Bill S- 686. It ordered the jurisdiction of the Schiavo case be taken from the State of Florida and handed exclusively to the federal courts, an act unheard of in recent America history.

SCHIAVO: We should be ashamed as a president. But he thinks it was OK. He's just -- well, you know, we should preserve life. Who are you to tell us that? Did you know Terri Schiavo? Did you come down after I invited you? No. Did your brother, who was 20 minutes away? No.

NARRATOR: For that matter, none of the politicians, who offered opinions in the preceding days and weeks, had ever knew Terri Schiavo.

The whole case was now in the hands of federal judges. But once again, court after court refused appeals by the Schindler family that her feeding tube should be reinstated.

Finally, Supreme Court justices refused to intervene. And the 15-year battle was over.

ROBERT SCHINDLER, TERRI SCHIAVO'S FATHER: We just feel bad that Terri left this life without one of her family members' right beside her.

MARY SCHINDLER: Get out of my face. Get out of my face.

SEN. BROWNBACK: With Terri, we witnessed a legally sanctioned death by starvation and dehydration.

DR. JOHN THOGMARTIN, MEDICAL EXAMINER: There was massive neuronal loss or death.

NARRATOR: The doctor who performed the autopsy said she had extensive brain damage and died of dehydration.

JEB BUSH, GOVENOR OF FLORIDA: It's heart breaking, to be honest with you. Our thoughts and prayers go out to her family, to all the people that wanted her to live.

NARRATOR: The courts, especially the Supreme Court, were now in the line of fire. And there was outrage in the street.

UNIDENTIFIED MALE: Someday, maybe we'll get some good Supreme Court judges that have a little common sense, compassion, and to do the decent thing for humanity.

NARRATOR: And stark threats from leaders in Congress. BROWNBACK: We will look at an arrogant, out of control, unaccountable judiciary that thumb their nose at Congress and the president when given the jurisdiction to hear this case anew and look at all the facts and make a determination. They chose not to participate.

NARRATOR: The Supreme Court, of course, didn't explain why it declined to hear the case. By tradition, it rarely does.

But I recently had a rare opportunity to talk on the record with one former and one current member of this court.

Justice Breyer, because he is still a sitting justice, didn't talk about the Schiavo case. But Justice O'Connor, recently retired, showed no hesitation.

O'CONNER: There were members of Congress who were very unhappy with the Florida court's decision. And as you know, legislation was passed for that one specific case, requiring federal court review.

NARRATOR: Did that trouble you?

O'CONNER: It did. Because it was asking for review of one specific case. That's so unusual.

The federal trial court concluded that there had been no legal error in the state court's resolution. So it went to the federal court of appeals, which agreed. It then came to this court. And we did not take the case and overturn it. And that resulted in a great deal of outspoken sentiment, unhappy with the courts for how they had dealt with it.

STEPHEN BREYER, SUPREME COURT JUSTICE: I think it's true that, if you look at polls and trying to get attitudes and so forth, there are a growing number of people who think that what judges do is just decide what they like. My goodness, I don't ever feel I decide what I like. And there are fewer people who are thinking judges are trying impartially to apply the law, which, of course, is what I try to do.

NARRATOR: We're judges, Justice Breyer is saying, not politicians. And he likes to point out that the justices are unanimous in about 40 percent of their cases each year. But in the others, especially those with high profiles, the justice's party, their ideology, the president who nominated them, are all pretty good indicators of how they'll vote.

SCHIAVO: You know, my main goal last year was just to be with Terri.

NARRATOR: As for Michael Schiavo...

SCHIAVO: And hold other politicians accountable.

NARRATOR: He's just hoping that all parts of the government -- legislative, executive, and judicial -- take a step back. SCHIAVO: We live our lives as Americans. You know, we make our decisions every day about our families, about our loved ones. It's scary when the government comes in and says you can't do that. What are we turning into?

NAELA IMANYARA-SERIKALI, SUPPORTS SCHOOL CHOICE PLAN: If the playing field was equal from the beginning, I would says, OK, we embrace it. It shouldn't be a part of this. But we are not on equal playing ground.

NARRATOR: Ahead, another incendiary battleground where the courts have intervened, the battle over school desegregation in America. School buses, once again, at the Supreme Court.


NARRATOR: This is the morning ritual for most kids who attend public school in metropolitan Louisville, Kentucky. It's only one of several so-called transportation depots where thousands of students leave one school bus, and then transfer to other buses to begin their day -- all in the name of the city's Voluntary Diversity Program.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: This is orchestrated chaos. But it's the practical result of what Louisville tried to do, not only comply with court orders, but based on pressure from politicians, parents and the court, come up with a solution that officials thought everyone could live with.


NARRATOR: It's just past 6:00 a.m. at the Dewboy's house.

DEVOY: Seth? Hey?

NARRATOR: Seven-year-old Seth is not a happy camper.

We're going to make the sacrifices that we need to get what we feel like is best for Seth.

NARRATOR: That sacrifice means up to three hours a day on a public school bus to a magnet school in a mostly black neighborhood, but with a mostly white student body.

It's because Louisville officials, with the court's approval, came up with a plan that mandated most schools had to have at least 15 percent, but no more than 50 percent black enrollment.

DEWBOY: He doesn't know anything different. He's gone there since he was 4 years old. He's in the pre-K program.

NARRATOR: While Seth heads west to a class in a predominantly urban neighborhood, 16-year-old Howard Brim goes east to Ballard High School and a predominantly white suburb. Different directions, same three hours on a bus.

HOWARD BRIM, STUDENT: Kentucky's motto is education pays. I mean you are going to have to do things to get it.

NARRATOR: He's up every school day at 5:00 a.m. and takes public transportation. Howard says the school nearest his home doesn't offer the kind of education he's receiving now.

BRIM: What works 20, 30, 40, 50 years ago, is not going to work now.

NARRATOR: The long trek of both boys is much like Louisville's own journey. Schools here were once segregated by law. The Supreme Court's 1954 Brown v Board of Education ruling made that illegal. But Louisville was slow to change.

Nineteen seventy-five began a quarter century of federal court oversight in Jefferson County. Back then, these black students, pelted with rocks.

Naela Serikali attended Louisville schools in the days of court ordered busing. She now works for the city and supports the current racial balancing plan for her three children.

SERIKALI: They are not on equal playing grounds. And so we have to put that variable into the picture.

TEDDY B. GORDON, CIVIL RIGHTS ATTORNEY: Everyone calls me teddy bear.

NARRATOR: Teddy Gordon is an experienced civil rights attorney who has, in the past, represented blacks in discrimination cases. Now, he will oppose the diversity plan before the Supreme Court on behalf of some white and black parents.

GORDON: It's about actual discrimination that white kids, who want to go to their neighborhood schools that are better-performing schools, are denied entrance to that school solely because of their color.

NARRATOR: Arguably, the modern civil rights movement was launched more than half a century ago here at the United States Supreme Court. Although it was a unanimous decision, Brown versus Board of Education was broadly criticized at the time as judicial activism.

But it's since become known as the touch stone, the shining example of how the courts wield power when elected lawmakers cannot, or will not act.

Even so, a half century later, much of Louisville and its suburbs remain segregated. In fact, if not by law, the former White Water prosecutor thinks the Supreme Court will strike down the Louisville plan.

KENNETH STARR, DEAN, PEPPERDINE UNIVERSITY LAW SCHOOL: What we do, since Chief Justice Roberts and Justice Alito may not be especially wedded to the idea that there should be counting by the numbers, counting on the basis of race. NARRATOR: The sticking point could be what is a compelling government interest for a diversity plan.

KATHLEEN SULLIVAN, STANFORD UNIVERSITY LAW SCHOOL: It's a real clash between two conservative principals. Do you want to go for color blindness at the expense of local democracy? Or do you want to allow local school districts to experiment, to try and bring about a less color-conscious student body because everybody goes to school together.

NARRATOR: The debate will continues. But Seth's bus ride is finally over. Nine a.m., time to learn. But his bus is the last to arrive at Grandice (ph) Elementary school. It's a Math-Science magnet school with completive spots. Thirty-two percent of its students are African-American.

Seth doesn't see the racial divide. None of the children we spoke with in Louisville see it. But he has little idea how much it took to get him where he is now, and how much it may take to keep him there.

Ahead, why did the courts OK the seizure of private property?

MIKE CHRISTOFARA (ph): They are up there in black robes, supposed to be protecting our constitutionality. And what do they do? They stole our property rights.

NARRATOR: Next, why things are not that simple.


NARRATOR: Fort Trumble didn't always look like this.

But we had a little of everything down here. We had our own marina. We had bakeries down here at one time.

NARRATOR: And one of the things Mike Christofara (ph) will remember most is his favorite maple tree.

CHRISTOFARA (ph): It's a beautiful tree. And I hope that they save that tree. I mean you cannot grow trees like that anymore. I mean it takes, you know, 50 years to grow them.

TOOBIN: It's a tiny place tucked against the Long Island Sound in the city of New London, Connecticut, a city the mayor says needs a great deal of help.

MAYOR ELIZABETH SABILIA, NEW LONDON, CONNECTICUT: New London has seen jobs, not only jobs, high-tech jobs, while still jobs leave and we only have about 34 percent of our housing is home owner occupied. The rest are rentals.

TOOBIN: Because of that, New London officials in the late 1990s formed what they called a development corporation. The idea was to create a new upscale commercial and retail zone in Fort Trumbull and new condominiums would replace some of the existing homes. City officials had a big ally, the giant pharmaceutical company Pfizer, which had opened an enormous research and development complex adjacent to the neighborhood.

SABILIA: It was bungled in the beginning but it doesn't mean that the sentiment, the cause wasn't just.

TOOBIN: There was one big stumbling block, people. People like Mike Christofaro already lived there.

SABILIA: I think what should have happened was that there should have been a delegation of city leaders that went down and talked to the residents there and explained what was happening.

TOOBIN: Instead, this is what happened.

CHRISTOFARO: We were given the condemnation notice the day before Thanksgiving in 2000.

TOOBIN: New London officials had ordered all the homes in Fort Trumbull condemned, an action known at eminent domain, where government can legally acquire private property at a reasonable price in the name of public use. The property owners have to sell whether they want to or not.

DANA BERLINER, SENIOR ATTORNEY, INSTITUTE FOR JUSTICE: The idea that you could work your whole life to purchase a home and that it could be taken from you because somebody wealthier had a home or a business they wanted to put there runs contrary to everything we think life in America is about.

TOOBIN: So, the residents who didn't want to sell, with the help of a public interest law firm in Washington, filed suit. But, at every stage of the case, they lost until five long years later it reached the Supreme Court.

Why did you fight so hard on this issue?

CHRISTOFARO: It's your right to say it's up for sale, not to have someone come in here and say they have a better use for it to build a condo so that someone else can move into your neighborhood where they're basically telling you that you're not good enough to be here.

TOOBIN: The lawsuit, Kelo v. New London, was named for the woman who owned this pink house Susette Kelo.

SUSETTE KELO, FORT TRUMBULL HOMEOWNER: It took over our lives for a long time until we finally took our own lives back and decided we're going to live our lives and not be prisoners in our own homes.

TOOBIN (on camera): The Supreme Court's opinion in the Kelo case was handed down here last spring. The vote was 5-4 against the homeowners and for the city.

CHRISTOFARO: How can, you know, five justices come back, steal your property rights, you know what I mean that they're up there in black robes supposed to be protecting our constitutionality. And, what do they do, they stole our property rights.

TOOBIN (voice-over): To say the decision triggered a storm of protests is putting it very mildly indeed.

THOMAS DELAY: This Congress is not going to idly sit by and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary.

TOOBIN: In New Hampshire, protesters tried to persuade local officials to use eminent domain to seize the home of Justice David Souter. And, around the nation, nearly 30 state legislatures changed their laws.

BERLINER: The majority of states took this decision and their responsibility very seriously and passed laws that provided further protection for people against the abuse of eminent domain.

CHRISTOFARO: We lost the battle. We lost the battle on eminent domain here in Fort Trumbull but we're winning the war. I mean people are so outraged across this nation.

TOOBIN: The former solicitor general for President Bush, Ted Olson, agrees.

(on camera): Why do you think the Kelo case touched such a nerve in a lot of people?

THEODORE OLSON, FORMER SOLICITOR GENERAL: Well, your home is your castle. We believe that in this country. We believe in property rights. We believe it's pretty sacred. I think it struck a nerve because people thought, "Well, if they did that to that couple or those families, they can do that to me because they want to build a parking lot for a pharmaceutical company."

TOOBIN (voice-over): Back in Fort Trumbull, all the owners have finally reached settlements, finally moved on to other homes. These houses will be bulldozed before the first snowfall. And, even though tougher laws were passed, public interest attorneys say that since the decision nearly 6,000 private properties around the country have been condemned in a similar manner.

UNIDENTIFIED MALE: This might be a time that the court could, as it were, take its foot off the gas pedal.

UNIDENTIFIED FEMALE: If there's a specific threat to that judge...

TOOBIN: As public anger against judges increases, some are suggesting radical solutions.

SEN. CHARLES GRASSLEY (R), IOWA: Quite frankly, the judiciary could use an inspector general.

TOOBIN: Should we be judging the judges?




TOOBIN (voice-over): Even by the standards of overheated political rhetoric, what Texas Senator and former Texas Judge John Cornyn said a year ago was stunning.

SENATOR JOHN CORNYN (R) TEXAS: I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public that it builds up and builds up and builds up to the point where some people engage in violence certainly without any justification but a concern that I have that I wanted to share.

TOOBIN: The Senator's statement came just after the husband and 90-year-old mother of a federal judge in Chicago were murdered killed, the police said later, by a man who had lost a lawsuit before that same judge.

Senator Cornyn later apologized for even appearing to condone courthouse violence but he struck a chord at the highest levels.

SANDRA DAY O'CONNOR, SUPREME COURT JUSTICE (RET.): If it comes to the point of retaliating against judges for the very decisions they've made within their jurisdiction, that's when I get worried.

TOOBIN (on camera): Actual violence, of course, is rare against judges in this country. But, after a flood of outrage over cases like Terri Schiavo and eminent domain, there are clear signs of a political backlash against the American judiciary. Not surprisingly, the most significant moves are being planned right across the street at the Capitol.

GRASSLEY: Quite frankly, the judiciary could use an inspector general.

TOOBIN (voice-over): Iowa Senator Charles Grassley says the idea of a inspector general is to ferret out fraud and waste. It's worked well in other parts of the government, so why not in the courts?

GRASSLEY: No branch of government, no public servant, no one individual is perfect. People can make mistakes. People can become so independent that they overlook a lot of things like whether money is being wasted, overlook whether ethics are being followed as they should be.

OLSON: I don't think there's anyone that contends that there's any fraud, abuse, or corruption in our federal judiciary. An inspector general then would, I suppose, start getting involved in deciding whether things were decided in the right way.

TOOBIN: So far, the idea hasn't moved past the committee stage in Congress and many are already lined up against it.

O'CONNOR: I don't know that we need a whole new regulatory scheme to address that and I just think it might lead to some unfortunate relations between the branches of government.

TOOBIN: But why are the judges themselves on trial?

THOMAS GOLDSTEIN, SUPREME COURT LEGAL ANALYST: I think conservatives have figured out that judges are an easy target. They can't fight back in any real way. They get involved in social issues. Frequently they decide those issues in ways that conservatives disagree with vehemently. And so, conservatives are going to blame it on the judge rather than the law that the judge is applying.

TOOBIN: Some conservatives, of course, don't see it that way.

KENNETH STARR, DEAN, PEPPERDINE UNIVERSITY LAW SCHOOL: There is an erosion, a loss of public confidence in the courts generally and in the Supreme Court more specifically, so I think the court has to or should be mindful of that.

What can it do? I think one of the things it can do is do more real law cases. Do what courts typically do, as opposed to entering constitutional frontiers that they're being encouraged to go into.

Let's talk about issues of gay rights. Well, the court doesn't have to go there. Let's talk about end of life issues and physician assisted suicide. The court doesn't have to go there.

TOOBIN: Ahead, extreme candor at the Supreme Court.

(on camera): Why should we trust you rather than the government officials who are answerable to the people?

(voice-over): A sitting justice on the record and a former justice finally free to speak her mind.




TOOBIN: This is the United States Supreme Court where presidents have been rebuked and chosen, where the course of American history has been changed. It's a given that the justices who preside here almost never talk publicly about their jobs or especially about their decisions.

But I recently had the chance, rarely granted, to talk on the record with a former justice and a justice still sitting on the court. Justice Stephen Breyer talked about his job and about the court's critics. And, former Justice Sandra Day O'Connor was anxious to talk, talk about the surge in complaints about judges and justice all over the country. O'CONNOR: As I went through the last few years of service here at the court, I saw increasing indicators of unhappiness with judges. We heard all kinds of statements by members of Congress.

DELAY: This is a horrible decision.

UNIDENTIFIED MALE: This court doesn't seem to understand the unattended consequences.

UNIDENTIFIED MALE: To reign back in this broad interpretation.

UNIDENTIFIED MALE: Congress has to respond to this. We cannot let the courts step in.

O'CONNOR: We saw legislation introduced to somehow restrict or affect judges at both the state and federal levels and even public opinion polls about courts and judges showed an increase in dissatisfaction with the American public. And there was a great deal of rhetoric about activist judges and that seemed to be a mantra of some kind.

TOOBIN: Federal judges they are appointed. They're not democratically elected. They serve essentially for life. Why should we trust you rather than the government officials who are answerable to the people?

STEPHEN BREYER, SUPREME COURT JUSTICE: That's a very good question. Why would anyone want a system like ours in a democracy? The answer has to be it's possible despite those words on paper that a majority could gang up on a minority. The prayer of the founders was that that wouldn't happen here. I can remember in my youth Governor (INAUDIBLE)...

Well, the unusual thing about Arkansas is that...

BREYER: ...stood in the schoolhouse door with the state militia and said "The Supreme Court has told me to let the black children into the white school but I won't. I won't do it." It took more than the Supreme Court. It took President Eisenhower to send paratroopers to Little Rock, who took those children by the hand and walked into that white school integrating the school according to law.

I tell you that story, it's one of many, because it both shows a need for judges to be independent and, more important than that, it shows the need for people in the United States to understand how that independence is part of their life, why they might support it, why they might stand up for judicial decisions even those that they think are very wrong.

TOOBIN (voice-over): Justice O'Connor was the first woman ever appointed to the Supreme Court by Ronald Reagan in 1981. She was raised on a ranch in Arizona, third in her class at Stanford Law School in 1952, but still no law firm would hire her because she was a woman, became a state senator, then a judge in Arizona.

BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: Ladies and gentlemen, Judge Stephen Breyer.

TOOBIN: Justice Breyer was appointed by Bill Clinton in 1994. He was born and raised in San Francisco, a law clerk to Justice Arthur Golberg, professor at Harvard Law School, aide to Senator Ted Kennedy. Recently, of course, the whole confirmation process has become a great deal more political.

UNIDENTIFIED MALE: What kind of Supreme Court justice would John Roberts be? Americans have a right to know.

UNIDENTIFIED MALE: Every day desperate liberals make up a steady drip of attacks against Judge Samuel Alito.

TOOBIN: You just had a selection process to replace you on the Supreme Court.

O'CONNOR: Indeed.

TOOBIN: Television commercials both sides buying ads, a very political process.

O'CONNOR: It was and I think the television viewer may be encouraged to get the impression that judges do then take office and decide on the basis of their own political instincts how to decide cases and I think that's very unfortunate.

TOOBIN: Does it bother you when people like me go on television and say, "Well the Reagan justices, like Justice O'Connor, and the Clinton justices, like Justice Breyer...

BREYER: Yes, it does, it does bother me.


BREYER: Because I think that when I'm here I know I was appointed by President Clinton and I'm proud of that. The fact is once I'm appointed I'm not a judge for one group or another group. And when I write a dissent or I write a majority, the people that disagrees with me the most I'm their justice too. I have to remember that. I can't write in a way that will please everybody. I know I can't. It's a big country.

O'CONNOR: Who would know how you would come down on some issue you had never addressed before and sometimes in a field of law unfamiliar to the judge? And the judge is in office a lot longer than the president who makes the appointment. They go on for a long time. So, I think it's kind of unrealistic to say, "Oh, there's a Reagan judge." So, of course, that's how they decided.

TOOBIN: Is it a problem when people make up their minds about an institution like the Supreme Court based solely on high profile cases, like Bush v. Gore?


O'CONNOR: Yes. BREYER: I'd say...

TOOBIN: How do you avoid a problem like that?

BREYER: Well, you can't but the remarkable thing about it is despite the strong feelings and the good arguments against it, which I thought I made some, but not everyone agreed. So, despite the division and the uncertainty the remarkable thing to me is that the American public followed it even on something they disagreed. And it's taken 200 years to get to that point.

We've learned as a nation to follow decisions even when we think they're wrong. And, in a country of 300 million people, as I said, with 900 million points of view, that is a national treasure.

TOOBIN (voice-over): Just ahead...

O'CONNOR: Do you think you get a written explanation from the president for every decision he makes?

TOOBIN: the boundaries of the Constitution.




TOOBIN (voice-over): The justices of the Supreme Court like to say they decide issues where the Constitution is less than clear, where there are no easy answers.

BREYER: We often divide in such difficult cases but it is important to remember that those cases are at the boundary that what the Constitution foresees is a vast area between those boundaries where people, average people, will decide democratically what kind of society they want.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: To do the job that the American people expect us to do.

TOOBIN: Since 9/11, those boundaries have been stretched even further in the name of a strong executive and the courts once again are in the crossfire.

KATHLEEN SULLIVAN, STANFORD UNIVERSITY LAW SCHOOL: We're at a very perilous time when the independence of the courts is vital to making sure that the president doesn't go too far, even in acts of well meaning zeal, to keep the fabric of our Constitution together.

O'CONNOR: Requiring federal court review.

TOOBIN (on camera): Did that trouble you?

O'CONNOR: It did because...

TOOBIN (voice-over): As we've seen in the past hour, judges are very aware of the anger.

DELAY: And arrogant, out of control.

TOOBIN: But there's little judges can do about how they're perceived.

(on camera): Justice Breyer, do you think the judiciary does a good job explaining itself to the public?

BREYER: No but it isn't really the job of the judiciary to explain itself.

O'CONNOR: Well, see I think we do in this sense if I could speak to that. It's because at the appellate level, at the level of this court, we write the reasons for the decisions that we make. They're published. We are the only one of the branches that does that. Do you think you get a written explanation from the president for every decision he makes, of course not. Do you think Congress does that, no.

TOOBIN (voice-over): You can't blame them for being testy. Still, according to the most recent polling, about 60 percent of Americans still believe Supreme Court justices are doing a good job.

BREYER: Someone has to have the last word. For 200 years people have thought in this country that the best guarantee that minorities will not be oppressed, that the Constitution will be lived up to, is to give that very last word under narrow circumstances to a group of judges who are independent, not because they're wiser, they make mistakes, but because by giving them the last word there is a better guarantee of that neutrality insulated from politics that can help those whom the Constitution wanted to help that minority that might be oppressed.