O’Connor and Gergen speak on public trust in Supreme Court

The Honorable Sandra Day O'Connor and former presidential adviser David Gergen spoke at the Conference on Law and Leadership.

Co-hosted by Elon University School of Law and the Center for Creative Leadership (CCL), the Conference on Law and Leadership brought together leaders in law, legal education and business to discuss the role of lawyers as leaders. The conference took place April 13-14 at Elon Law and at the headquarters of CCL, both located in Greensboro, North Carolina.

At the conference, O’Connor said the transparency of the Supreme Court’s reasoning, through its published opinions, was valuable in engendering public trust. After delivering her address at Elon Law on April 14, O’Connor was asked by a member of the audience what current justices of the Court could do to increase public confidence in the impartiality of their decisions. She responded, not by commenting on the current Court or its upcoming decisions, but by highlighting the Court’s history of transparency through its published opinions, including dissentig opinions.

“The Court does the best that it can by trying to write opinions that are self explanatory, well reasoned, and well written, so that you are free to judge whether those judges are doing a good job or not, and that’s wonderful,” O’Connor said. “There are not many courts around the globe where the work of the court is always in writing and made available to the public, and we do that and that is quite remarkable when you think about it. Nothing issues out of that court without explanations and if there’s disagreement among the justices you can read all about it in their opinions. That is very impressive and I think continues to sustain our system as we have it and I think it’s pretty good.”

David Gergen, speaking at the conference’s evening banquet on April 13 at the O.Henry Hotel in Greensboro, spoke in the context of an April 5-8 Washington Post-ABC News poll indicating that half of the public expects the justices of the Supreme Court to rule on the constitutionality of the Patient Protection and Affordable Care Act mainly based on their “partisan political views,” with only forty percent expecting their decision to be rooted primarily “on the basis of the law.” He said that journalists should not presume the politicization of the Court.

“I worry about the degree to which the judiciary is being politicized and being seen as politicized,” Gergen said. “I think it is terribly unfortunate that in too many instances the mainstream media have reported that if the Court decides against the Patient Protection and Affordable Care Act, that it was a political decision, and if they support it, then it was a decision made on the merits. Questions about the scope of the Commerce Clause have come before the Court often, and there are legitimate and complex questions there. If we let the Supreme Court slip away from us as a respected institution, we’re going to lose something very precious.”

Gergen offered additional insight about the Court’s pending decision regarding the Patient Protection and Affordable Care Act in an interview following his address.

“In recent years, we have seen many more 5-4 decisions than in the past with a conservative bloc lining up against a more liberal bloc,” Gergen said. “In the case of Obamacare, the law could be struck down by 5 justices nominated by Republican presidents against 4 appointed by Democrats. I just hope we can keep our heads in the political storm that will follow.”

In his keynote address, Gergen said that the unanimous (9-0) 1954 Warren court decision in Brown V Board of Education of Topeka had a significant impact on the southern states’ acceptance of the legitimacy of the civil rights movement.

“If that decision had come out five to four it would have been a mess,” Gergen said. “People would have asked who the next president would be and who that president would appoint to the Supreme Court, and it would have dragged out for twenty years.”

George R. Johnson, Jr., Dean and Professor of Law at Elon University School of Law, commented on the value of the insights shared by O’Connor and Gergen.

“Justice O’Connor and David Gergen are two of the nation’s most accomplished, respected and insightful public figures,” Johnson said. “The insights they offered about the importance of public confidence in the impartiality of our nation’s highest court enriched a valuable discussion at our first Conference on Law and Leadership about the roles that lawyers should play in our society, especially the leadership roles that lawyers have traditionally played and that our society and the profession expects of them.”

Information about the Conference on Law and Leadership is available at www.elon.edu/lawleadership.

This was Justice O’Connor’s third visit to Elon University School of Law. She dedicated the law school on September 16, 2006 and returned to the law school in March of 2010, delivering remarks on issues facing the judicial branch in federal and state government.

David Gergen is the Chair of the Elon University Law School Advisory Board. The former adviser to four United States presidents is Professor of Public Service and Director of the Center for Public Leadership at the Harvard Kennedy School.

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