Read Online First Among Equals by Kenneth W. Starr - Free Book Online Page A
Authors: Kenneth W. Starr
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Lazy B ranch in Arizona, Sandra Day O'Connor developed a fiercely independent bent of mind. At home with cowboys or ambassadors, and the Court's most prominent member of the Washington social scene, Justice O'Connor is the Court's pivotal member. As she goes, more frequently than not, so goes the Court.
Coupled with her fierce independence, Justice O'Connor's background as a state court judge in Arizona, entrusted directly with the development of the common law in the manner described in Justice Scalia's
A Matter of Interpretation,
perhaps contributed to her greater flexibility in interpreting the Court's prior cases, and in particular in fashioning the
Casey
compromise on
Roe v. Wade.
She was accustomed to the common-law tradition of finding a better rule in the analysis of legal problems. In other arenas, she had shown a flexible willingness to rewrite statutes in order to save them. She was willing to step back when the Court entered new arenas and proceed with what seemed to other members of the Court extreme caution. She was flexible, as common-law creators tend to be. She positioned herself in the center and articulated a theory or principle in her own way. Most prominently in this respect, Justice O'Connor displayed the quality of judicial creativity on highly charged church-state issues as well as abortion, fashioning entirely new doctrine. The Court, as we will see, has struggled for consistency in its decisions under the Establishment Clause of the First Amendment prohibiting laws “respecting an establishment of religion.” The Court's work over the years has been largely a search for coherent, consistent doctrine. Justice O'Connor proved highly creative in this sensitive area of church-state relations. She created a new concept or principle in the law: the idea of “endorsement.” That is, in her view, a violation of the Establishment Clause occurs when government “endorses” religion or religious practice. What did this mean? O'Connor stated the idea at a high level of generality. Government could not make one's religious beliefs, or lack thereof, relevant to one's standing in the political community. To do so would effect an “endorsement” of religion (or, conversely, irreligion).
What about the nation's motto, “In God We Trust”? Is this an endorsement of religion? Surely it is, many would say. The nation, speaking through its government in a statute, says that it is placing its trust not in the people, or the Constitution framed by “We the People,” but in God. Others would say the national motto is merely an acknowledgment of our history and tradition, not rising to the level of an endorsement.
Ultimately, we are left to guess as to the reach of the undefined “endorsement” principle. Tellingly, the endorsement test was not drawn from prior case law; it was, rather, Justice O'Connor's “take” on the values that un-dergird the Establishment Clause and the many cases over the decades interpreting the meaning of that pivotal part of the First Amendment. She was seeking, as she put it, to
clarify
the law. She set forth her view to this effect in a separate, concurring opinion upholding the practice of including a creche in a Christmastime display on city property in Pawtucket, Rhode Island. That is, her vote was a “majority” vote, but she wrote a separate opinion setting forth the different way that she examined the Establishment Clause issue in the case. From that modest beginning in a single case, with the Court struggling over the constitutionality of the creche, the concept of endorsement was incorporated into the body of First Amendment law. After all, her centrist vote was of critical importance on a closely divided Court. Her vote, and frequently that of Justice Anthony Kennedy, proved decisive.
And thus, a centrist, common-law constitutionalist from Arizona, with little prior judicial experience before arriving in Washington, became the Court's most powerful member. Her power
Coupled with her fierce independence, Justice O'Connor's background as a state court judge in Arizona, entrusted directly with the development of the common law in the manner described in Justice Scalia's
A Matter of Interpretation,
perhaps contributed to her greater flexibility in interpreting the Court's prior cases, and in particular in fashioning the
Casey
compromise on
Roe v. Wade.
She was accustomed to the common-law tradition of finding a better rule in the analysis of legal problems. In other arenas, she had shown a flexible willingness to rewrite statutes in order to save them. She was willing to step back when the Court entered new arenas and proceed with what seemed to other members of the Court extreme caution. She was flexible, as common-law creators tend to be. She positioned herself in the center and articulated a theory or principle in her own way. Most prominently in this respect, Justice O'Connor displayed the quality of judicial creativity on highly charged church-state issues as well as abortion, fashioning entirely new doctrine. The Court, as we will see, has struggled for consistency in its decisions under the Establishment Clause of the First Amendment prohibiting laws “respecting an establishment of religion.” The Court's work over the years has been largely a search for coherent, consistent doctrine. Justice O'Connor proved highly creative in this sensitive area of church-state relations. She created a new concept or principle in the law: the idea of “endorsement.” That is, in her view, a violation of the Establishment Clause occurs when government “endorses” religion or religious practice. What did this mean? O'Connor stated the idea at a high level of generality. Government could not make one's religious beliefs, or lack thereof, relevant to one's standing in the political community. To do so would effect an “endorsement” of religion (or, conversely, irreligion).
What about the nation's motto, “In God We Trust”? Is this an endorsement of religion? Surely it is, many would say. The nation, speaking through its government in a statute, says that it is placing its trust not in the people, or the Constitution framed by “We the People,” but in God. Others would say the national motto is merely an acknowledgment of our history and tradition, not rising to the level of an endorsement.
Ultimately, we are left to guess as to the reach of the undefined “endorsement” principle. Tellingly, the endorsement test was not drawn from prior case law; it was, rather, Justice O'Connor's “take” on the values that un-dergird the Establishment Clause and the many cases over the decades interpreting the meaning of that pivotal part of the First Amendment. She was seeking, as she put it, to
clarify
the law. She set forth her view to this effect in a separate, concurring opinion upholding the practice of including a creche in a Christmastime display on city property in Pawtucket, Rhode Island. That is, her vote was a “majority” vote, but she wrote a separate opinion setting forth the different way that she examined the Establishment Clause issue in the case. From that modest beginning in a single case, with the Court struggling over the constitutionality of the creche, the concept of endorsement was incorporated into the body of First Amendment law. After all, her centrist vote was of critical importance on a closely divided Court. Her vote, and frequently that of Justice Anthony Kennedy, proved decisive.
And thus, a centrist, common-law constitutionalist from Arizona, with little prior judicial experience before arriving in Washington, became the Court's most powerful member. Her power
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