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Passing Justice

She has been off the Court for well over a decade and suffering from dementia, yet it seems fitting to mark the death of Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court of the United States. Reagan appointed her when Potter “I know porn when I see it” Stewart retired. Considered a swing vote, Stewart also had his moment of championing individual liberties having authored Katz v. United States, 389 U.S. 347 (1967) (expanding 4th Amendment guarantees against unreasonable searches and seizures) and signing on to Roe v. Wade, 410 U.S. 113 (1973) (finding a limited right to abortion inherent in the Fourteenth Amendment). He also was a member of the majority opinion in a significant First Amendment case, Engel v. Vitale, 370 U.S. 421 (1962). In that case, the Court ruled that it violated the Establishment Clause for a public school to create and institute an official, non-denominational prayer even if students had the opportunity to be excused from the prayer itself.


Justice O’Connor was not known for her pioneering decisions or for her historical acumen or for her interest in advancing a particular interpretation of the Constitution. Without doubt she was very smart and enterprising, but she will always be remembered as the first woman on the Court, not the most interesting or thoughtful or creative or brilliant justice ever to serve. It cannot have been easy for her, so this is not casting aspersions. She was, without question, the beginning of a rightward movement of the Court (indeed, her replacement when she retired is about as far to the right as is humanly possible). To her credit, she never seemed ideological; she straddled a line rather than directed a course.


Let’s look at how she tackled some of the First Amendment cases during her tenure. I am singling out two – Lee v. Weisman, 505 U.S. 577 (1992) and McCreary County, KY v. ACLU, 545 U.S. 844 (2005). Highlighting the significance of the nine people on the Court at any given time, I am not at all sure the current Court would uphold either of these decisions today. But, Justice O'Connor held the line. Lee v. Weisman was a case similar to Engel v. Vitale regarding prayer in school. However, the prayer in question was by offered by a rabbi at graduation for a middle school. Although it was nonsectarian and sought to be “inclusive”, the fact that it occurred on school grounds in a coercive setting, the Court found it to be a violation of the Establishment Clause.


Justice O’Connor signed on to the majority opinion written by Justice Kennedy as well as a truly beautiful concurrence by Justice Souter. The majority opinion invoked history, highlighting documents written by Madison and Jefferson as well as precedential decisional law. The opinion averred,


The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves.

Lee v. Weisman, 505 U.S. at 591.


The concurrence by Justice Souter goes deeper and is even more eloquent. He walked through the evolution of the First Amendment and marked even more precedent to support the ruling. Justice O’Connor signed on to that historical masterpiece as well. This was a close decision – four justices dissented. For those who cherish the separation of church and state, the importance of Justice O’Connor’s vote cannot be overemphasized.


Lee v. Weisman rabbit hole: As for a Who’s Who in Supreme Court happenings, the cast of litigators in this case is remarkable. The petitioners, that is the school district that wanted to uphold the prayer opportunity at graduations to come, were represented by notorious right-wing warrior, Chuck Cooper. With him on the brief was none other than Trump counsel and media talking head, Jay Sekulow. Arguing for the same position, but on behalf of the Bush (Bush I) administration, was impeachment flunkee - Bill Clinton prosecutor and Donald Trump defender - Ken Starr, joined by Deputy Solicitor General John Roberts. The majority of amicus briefs were filed by various Christian Right organizations looking to encourage and implement prayer in public schools across the country. Lee v. Weissman was decided 31 years ago – given this cast of notables and the positions they took, it would likely face a different fate today.


So, her vote, but not her voice, was heard in Lee v. Weisman. Jump ahead to 2005, to a different, but no less significant, First Amendment Establishment Clause case. In McCreary County, KY v. ACLU, Justice Souter wrote the majority opinion in another tight decision. This case had to do with the Ten Commandments being placed in courthouses in Kentucky (to be blunt – this was done in solidarity with Christian Nationalist Roy Moore’s placement of the same religious text in Alabama courts, but I digress). First, they just put up the 10 Commandments which was blocked; then they made a little make believe “educational” display with a bunch of other documents which they claimed were “foundational” to American jurisprudence. In one of the best retorts by a sitting Supreme Court Justice to these shenanigans, Justice Souter averred,


In a collection of documents said to be “foundational” to American government, it is at least odd to include a patriotic anthem [lyrics to the Star Spangled Banner], but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing. And it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its declaration that “fish-weirs shall be removed from the Thames.” If an observer found these choices and omissions perplexing in isolation, he would be puzzled for a different reason when he read the Declaration of Independence seeking confirmation for the Counties’ posted explanation that the Ten Commandments’ “influence is clearly seen in the Declaration,”; in fact the observer would find that the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives “from the consent of the governed.” If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.


McCreary County of KY v. ACLU, 545 U.S. at 872-873 (emphasis added; footnotes and citations omitted) (not sure if it is appropriate, but can I hear an Amen to this verbal knockout?)

Despite the near perfection of this decision ruling that the placement of the Ten Commandments in the courthouse, even when cloaked in an “educational” mirage, was an impermissible violation of the Establishment Clause, Justice O’Connor joined, but also chimed in on her own. It is in this decision where I hope her memory lives. Here is some of what she had to say about the First Amendment:


In regard to the Free Exercise and the Establishment Clauses, “They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.” Id. at 882.


Noting how a wall between church and state has made the United States a stronger nation while religiously motivated governments fail, “Why would we trade a system that has served us so well for one that has served others so poorly?” Id. at 882.


Commenting on the history of the First Amendment, “It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.” Id. at 884.


Thanks, Justice O’Connor. Rest in peace.




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