Will the Real Justice O’Connor Please Stand Up?

July 2005

America is engulfed in the flames of a Culture War. This war is reaching new levels of white-hot intensity with the onset of vacancies on the U. S. Supreme Court. We must understand that the battle over judges is not really over people, but over principles. The fight is not over just a Court, but over a country.

Justice Sandra Day O'Connor has resigned from the Supreme Court, effective upon the seating of her successor. There are those who say that we should now move on and focus no further attention on O'Connor's record. But they are wrong. Uncovering the truth about O'Connor, generally viewed as a "moderate/centrist swing vote" on the Court, is very, very important.

The truth is important because truth is always important. The truth is important because of the misrepresentations being flung around about O'Connor's record. Senators Ted Kennedy and Barbara Boxer declared shortly after the resignation announcement that O'Connor should be replaced by a Justice of like mind — a "mainstream conservative." This description is false. It is also very useful to Kennedy, Boxer, and other Reconstructionists, who are fighting to create a new America with a Humanistic Constitution and culture. A strong Constitutionalist appointee would have a more significant impact on the Court in replacing a "centrist" than in replacing the true O'Connor — a leftist Justice.

The truth is important because exposing the truth about O'Connor's record paints a vivid picture of the views, values, and qualities we do not need in a Justice. Some of O'Connor's votes have fallen on the Constitutionalist side. But these votes are generally found in cases turning on specific facts and/or in cases not involving the fundamental cultural conflicts ripping America apart. A judge's record, like an individual's life, is often defined by a few decisions of fundamental importance. O'Connor's votes and opinions (she has been one of the Court's more prolific opinion-writers) in landmark cases show a distinct leftward "swing" to her actions. Consider the following philosophical/judicial portrait of Justice Sandra Day O'Connor.

1. Abortion "Rights":
The original Roe v. Wade decision intertwined a woman's right to an abortion with the "trimester scheme" of pregnancy — the later the trimester, the more limited was the right to an abortion. In the late 1980s, O'Connor began leading the Court in eliminating the trimester scheme while still upholding the "right to an abortion." O'Connor reached into legal la-la-land and invented the "undue burden" standard. A government can limit a woman's right to an abortion so long as the regulation does not constitute an "undue burden" on the basic "right to an abortion." This O'Connor invention blossomed fully in the deadly fruit of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992 — upholding several state regulations of abortion but refusing to over-turn Roe) and Stenberg v. Carhart (2000 — throwing out partial-birth abortion bans).

The extraordinarily fragmented decision in Casey produced five opinions and no majority opinion. Rather a "plurality opinion" cobbled together by O'Connor, Kennedy, and Souter is considered the opinion of the case. Central to their upholding of Roe was not its legal soundness, but its "precedential force" (i.e., it's been around for 19 years). The trio justified this remarkable conclusion with their equally remarkable and now-famous "mystery passage": "At the heart of [a woman's] liberty is the right to define one's own concept of existence of meaning, of the universe, and of the mystery of human life."

O'Connor compounded the mischief of Casey by employing it as the foundation of her anti-life vote in Stenberg. Here the Court upheld the grisly practice of "partial-birth abortion." The majority wielded O'Connor's "undue burden" standard as a major weapon to sanction the murder of partially-born children. Translation: Abortion rights — or any rights — are what we, the Court (or even three members thereof), say they are. O'Connor's judicial actions have been deadly to children, to the Constitution, and to the country.

2. Homosexual "Rights":
O'Connor participated in three homosexual rights decisions which reveal strong support for homosexual rights and opposition to the Constitution and Judeo-Christian morality. Early in her career, O'Connor joined four other Justices in upholding a Georgia law against sodomy (Bowers v. Hardwick , 1986). The heart of that ruling was that the due process clause of the Fourteenth Amendment in its "liberty" guarantees does not grant a fundamental right to engage in sodomy.

O'Connor abandoned this morally and constitutionally correct position a decade later by joining five other Reconstructionist judges in Romer v. Evans , 1996 (invalidating a Colorado state constitutional amendment which prohibited state and local agencies from granting favoritism or specially protected status to homosexuals). O'Connor agreed with her five anti-constitutional colleagues (the "Sodomy Six") that "the amendment seems inexplicable by anything but animus toward the class that it affects [i.e., homosexuals]." She also agreed that the amendment was in reality motivated by a "bare. . .desire to harm a politically unpopular group. . . ." Translation: the only reason anyone, including us pro-morality Constitutionalists, can possibly have for opposing homosexuality is hatred toward homosexuals.

In her most recent homosexual rights decision, O'Connor plunges completely into the abyss of irrationality with her vote and concurring opinion in Lawrence v. Texas (2003 — over-turning state sodomy laws). The Sodomy Six dismissed millennia of Western and Anglo-American jurisprudence by lamenting that "the history of Western civilization and . . . Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction [in Bowers]." The Court instead relied on "our laws and traditions in the past half century" and on contemporary foreign and international law. (Note: Casey upheld Roe because it was 19 years old; now Lawrence throws out Bowers even though it's almost as old — 17 years. This bludgeoning of our culture and Constitution is surely one of O'Connor's most tragic legacies.

3. Religious Freedom:
In this critical issue area, O'Connor has often claimed to base her decisions "on the facts of the case." O'Connor declared in the Texas high school football game prayer case that whether a government action violates the Establishment Clause is "in large part a legal question to be answered on the basis of judicial interpretation of social facts. . . . Every government practice [every one] must be judged in its unique circumstances." (Santa Fe Independent School District v. Doe , 2000). O'Connor then voted to outlaw the Santa Fe ISD prayer because "it is reasonable to infer that the specific purpose of the policy [prayer] is to preserve a popular 'state-sponsored religious practice.'" O'Connor and her Court colleagues relied on the perception of the prayer they assert would be held by "an objective observer."

O'Connor employed her considerable skills in semantic invention in other cases. In the high school graduation prayer case, she offers us the "psychological coercion" test — the graduation prayer was unconstitutional because it created "psychological coercion" for some students not wanting to participate (Lee v. Weisman , 1992).

And in the last landmark cases of her career, O'Connor voted against the Ten Commandments displays (McCreary County v. ACLU of Kentucky and Van Orden v. Perry , 2005). In typical O'Connor style, the Justice found the displays violative of the Establishment Clause because "the purpose behind the counties' display [referring specifically to the Kentucky case, but applied by her to the Texas case] conveys an unmistakable message of endorsement [another O'Connor invention] to the reasonable observer." Is this the "objective observer" of the Santa Fe case?

Finally, O'Connor's attitude toward government and religious displays surfaces in the Pledge of Allegiance decision. (Elk Grove Unified School District v. Newdow , 2004). O'Connor argues that the Pledge is constitutional and that the Court should have given the case a full hearing. But her reasoning fails again. She chooses again to interpret the Establishment Clause with her "endorsement" test and re-introduces us to the "reasonable observer." A religious display is constitutional if it does not amount to government endorsement of religion, as determined by the "reasonable observer." Where and how such a remarkable person can be found is a key question O'Connor leaves unanswered.

But she concludes that her "reasonable observer" would find the Pledge constitutional because it is not a religious act but an act of "ceremonial deism." This statement is an oxymoron. "Deism" is itself a religious position (Cambridge Dictionary of Philosophy). Plucking words such as "ceremonial" out of judicial thin air does not alter this fact. So O'Connor salvages the Pledge of Allegiance from the claim that it is an unconstitutional [theistic] religious expression by defining it as simply another type of religious expression.

O'Connor also contradicts the position she took in the 1987 case of Edwards v. Aguillard (striking down a Louisiana's law requiring the state's schools to teach both creation science and evolution science if either were taught). In Aguillard, O'Connor agreed that "[C]oncepts concerning God or a supreme being of some sort are manifestly religious … These concepts do not shed that religiosity merely because they are presented as a philosophy or as a science." This definition of "religion" clearly renders "religious" the "ceremonial deism" to which O'Connor relegated the Pledge of Allegiance in Newdow .

O'Connor's votes and opinions in the religious freedom cases, especially Establishment Clause cases, have been a morass of conflict and confusion.


The words penned by Justice Antonin Scalia, in a dissent written to Casey , also aptly describe Sandra Day O'Connor's constitutional jurisprudence: O'Connor's law is "as doubtful in application as it is unprincipled in origin, . . . hopelessly unworkable in practice, [and] ultimately standardless."

Her replacement must be very different — for the good of the Court, the Constitution, and the culture.You Can Fight Back!

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