O’Connor Disrespects the Constitution!

By Retired Judge Darrell White


Sandra Day O’Connor, now a retired Supreme Court justice, has rendered another decision illustrative of the contempt she shows for the Constitution, particularly the text of our First Amendment.  Her opinion, while sitting as a  “fill-in” judge on a panel of the 4th Circuit Court of Appeals, held that excluding persons who pray “in Jesus’ name” (from a rotational roster of officials who open city business meetings) is a fair and reasonable way “not to exclude or disparage a particular faith.” 
The focus of the dispute is Fredericksburg, Va. Councilman Hashmel Turner (pictured below)– a Baptist minister – whose practice of concluding his prayers “in Jesus’ name” prompted a threat of litigation by offended listeners.  In response, the city adopted a non-sectarian prayer requirement, imposing a ban on any reference to “Jesus.”  When Reverend Turner sued, O’Connor upheld the ordinance, writing that “Turner was not forced to offer a prayer that violated his deeply-held religious beliefs. Instead he was given a chance to pray on behalf of the government.”  Behind that rhetoric is one unmistakable conclusion: conform to political correctness or face the punishment of exclusion.  Has O’Connor decided that the United States of America is no longer “under God?”
I’d like to know where O’Connor found Reverend Turner’s name in the First Amendment.  He clearly is not “Congress” – the focal point of our First Amendment’s prohibition against making a “law respecting an establishment of religion.” 
The word “Congress” is used sixty times in the Constitution and its amendments.  Why is it that our federal courts are so thoroughly confused over the word’s meaning in the First Amendment?  There are no battles over the other 59 uses.
O’Connor’s long-standing disregard for history and the clear text of the First Amendment was also on display in her concurring opinion in the notorious 2004 Elk Grove Unified School District v. Newdow case that sought removal of the words “under God” from America’s Pledge of Allegiance.  Therein, O’Connor contended that federal judges could ignore recital of the concluding “So Help Me, God” sentence of their obligatory oaths of office.  Not so!
Congress prescribed the content of this venerable oath in the Judiciary Act of 1789, announcing at the outset that it “shall” be taken before a federal judge performs the duties of office.  And no “wannabe” federal judge has authority to refashion even a jot or tittle.  Consider what might have occurred had O’Connor tried to become the first federal judge in history to ignore the unmistakable God-acknowledging requirement of the judicial oath in 28 U.S. Code Section 453.

To set the stage, picture yourself seated in the U.S. Supreme Court chambers back on Friday, September 25, 1981.  It’s been several months now since Ronald Reagan speculated in his diary that he thought Sandra Day O’Connor would “make a good justice.”  She had been confirmed by the Senate 99-0 several days before.  All eyes are now on Chief Justice Warren Burger who, in a packed Supreme Court chambers and surrounded by his colleagues is administering the oath required by 28 U.S. Code 453 to Sandra Day O’Connor, the first woman to serve on the Supreme Court. 

All is going according to the prescribed script as Burger concludes emphatically, “So Help Me, God.” The crowd awaits O’Connor’s dutiful repetition of the phrase that has officially concluded every federal judge’s oath since 1789.

Instead, O’Connor removes her left hand from the two Bibles on which they had rested, drops her right hand and announces with an ease that suggests deliberate forethought – “Mr. Chief Justice, nothing personal, but under today’s living Constitution and as an example of judicial independence for future federal judges, I hereby respectfully decline to recite that optional last sentence of the judicial oath.”  As hushed muttering and some gasps fill the Chamber, a clearly startled Burger, slowly lowers his own right hand in bewilderment, and says softly, “I see.”

Mrs. O’Connor fills the uncomfortable void by smoothly transitioning to her acceptance remarks, explaining coolly, “I thank you for being here to witness this historic exercise of conscience as I have chosen not to end my oath with “So Help Me, God.”  You see, this is 1981, and it’s time we acknowledge the pluralistic society in which we live.  No longer are we bound by acknowledgment of the God of the Bible.  After all, I believe that “endorsement [of God]  … sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”  “Given the dizzying religious heterogeneity of our Nation and my belief that the establishment clause prohibits against allowing government speech to offend, I want to make clear my intention is to keep God “optional” for Americans of all faith traditions.

Polite applause follows as a frowning Chief Justice Burger gavels for quiet and abruptly adjourns court.  The several reporters who were privileged to attend the ceremony quickly finish making notes and leave with a sense of urgency to report this trend-setting development.

Meanwhile, back at the White House, President Reagan is advised of O’Connor’s historic declaration and sends word summoning her to meet with him at the Oval Office immediately.  When she appears, Reagan interrupts his regular schedule to speak with her. 

When asked for an explanation, O’Connor declares, “Mr. President, I believe that endorsement of God sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.  And given the dizzying religious heterogeneity of our Nation, it’s clear to me that the ‘So Help Me, God’ ending of the judicial oath is mere “surplussage,” as we call it in judicial circles.  Trust me, Mr. President, it is not at all necessary. Any questions?”

President Reagan – “Yes, Mrs. O’Connor, just one.  I hope you haven’t moved in yet, have you?  Thank you for giving me this candid glimpse of how you view the Constitution’s First Amendment and just how you might have conducted yourself had you been sworn in as a justice of the Supreme Court.” 

[To his Chief of Staff] Please show Mrs. O’Connor out and draft a letter to the Senate Judiciary Committee Chairman asking that immediate consideration be given to our next-in-line nominee to fill the vacancy for which Mrs. O’Connor has declined to take her oath.

O’Connor – “But Mr. President, that ‘So Help Me, God’ optional ending is just ceremonial deism, for God’s sake! Haven’t you heard of separation of church and state?”
President Reagan – “No, Mrs. O’Connor, for the sake of the United States, it is not optional!  Haven’t you read our Constitution’s First Amendment?”

And Sandra Day O’Connor would have been a footnote in history.  Instead, she took the Oath and later, displaying her true colors, disdained it.  Perhaps impeachment is not too late for her?



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