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.” 

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.” 

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.” 

It has been reported that Judge Alex Kozinski, Chief Judge of the Ninth Federal Circuit Court of Appeal, posted - on his publicly accessible web site - content that included sexual-fetish videos and bestiality images. Meanwhile, this judge had been presiding over a highly publicized obscenity trial, which was suspended when the prosecutor handling the case detected a potential conflict of interest for a judge with a sexually explicit website to hear this case. When confronted by the media, Kozinski said that the photos were for his private use and he was unaware the content could be viewed by the general public. Apparently unrepentant, Kozinski explained, “It’s part of life.” California U.S. Senator Dianne Feinstein has remarked, “If this is true, this is unacceptable for a federal court judge.”

Well, if it is unacceptable, is it also contrary to the “good behaviour (sic)” requirement for a federal judge to hold office? Historically, impeachment has been used whenever judges disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker. Previous generations used this tool far more frequently than today’s generation. And because the grounds for impeachment were deliberately kept broad, articles of impeachment have described everything from drunkenness and profanity to judicial high-handedness and bribery as reasons for removal from the federal bench.

While there may be 300 million opinions in the United States today, only 435 opinions really count concerning Judge Kozinski’s misconduct. And those belong to the congressmen whose sworn responsibility it is to initiate impeachment proceedings under Article I, Section 2, Clause 5 of the United States Constitution. If they fail to act, Congress will have issued a continued smiley face of “good Behaviour” (sic) to Judge Kozinski under Article III, Section 1 of that same Constitution. Most importantly, like it or not, that silence would send a message to America’s youth concerning what is now acceptable conduct. As we pray for Judge Kozinski and his family, may we pray for our sick nation.

Constitutionally speaking (i.e., in terms of the free speech clause) why should it matter to courts whether God’s last name is “Almighty” or “Damn”?  Graduation season is upon us, and that predictably brings out groups who threaten valedictorians and their handlers with expensive lawsuits should anyone dare to give thanks to God on these memorable occasions.  All the while, these same groups defend the “free speech” rights of those who would blaspheme our Creator in public.

Recent polling suggests that over 75% of Americans believe our courts have gone too far in restricting free exercise of religion; 76% support public displays of Ten Commandments; and 90% support keeping “one nation under God” in our Pledge.  At the same time, Pew Research Center polling data shows that the stature of America’s judiciary has plummeted.  In 1997, 78% said they had a high opinion of the Court.  In 2001, it was 61%.  More recently, it was 57%. 

Human Events Weekly reports that “Favorable opinions of the Supreme Court among both conservative Republicans and evangelical Protestants have declined by about 20% since January 2001.”  (June 20, 2005)  Perhaps it is related to public perception that the Supreme Court is responsible for taking away private property, attacking religious liberties, legalizing same-sex marriage, and establishing rights for pornographers, criminals and terrorists.

French economist, statesman and author Frederic Bastiat (1801-1850)  observed, “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” 

Human nature has not changed, and those choices remain before us today.  Proverbs 29:2, reputedly the most popular verse during the period of America’s struggle for independence, puts it this way:  “When the [uncompromisingly] righteous are in authority, the people rejoice; but when the wicked man rules, the people groan and sigh.” (Amplified Bible)

Retired Judges of America (RJA) promotes the same point of view espoused in the Declaration of Independence - that is, that law comes from God and the self-evident reality of objective truth.   In other words, the inscription on America’s coins is the “National Motto” and not the “National Anachronism.”

The seeming hostility to religion by many of its justices is a stain upon the Supreme Court.  RJA agrees with Supreme Court Justice Clarence Thomas that ”a more fundamental rethinking of … Establishment Clause jurisprudence remains in order.” 

This era of constitutional cowardice must end!

It’s still the National Motto - not the National Anachronism.

Why is that? Because since 1958, May 1st has been set aside as “Law Day” - a special day of celebration by Americans to appreciate our liberties and reaffirm our loyalty to the United States. By statute (36 U.S. Code Section 113), it is set aside to cultivate respect for law.

On May 1st of 2008, America will celebrate the 50th anniversary of “Law Day” with the following theme: The Rule of Law: Foundation for Communities of Opportunity and Equity.

What better way to celebrate Law Day this year than to give your local court a presentation Bible so that its judges now and in perpetuity may have a tangible reminder that, as Justice Story wrote in 1833 (the same year Harlan was born) that: “I verily believe Christianity necessary to the support of civil society. One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. . . . There never has been a period in which the Common Law did not recognize Christianity as lying its foundations.”

PINEVILLE — Local judges Tuesday signed their “John Hancocks” at a Pineville Kiwanis Club meeting in replicas of the Bible that holds the signature of every U.S. Supreme Court Justice since 1906 to start a new tradition in local courts.

Judges who received “Harlan Bibles” for their courts said they will follow the lead of the U.S. Supreme Court by inviting all judges who serve to sign their names in the inside leaflets of the same Bible. The four Bibles, copies of the Harlan Bible held by the U.S. Supreme Court Curator, is similar to the Bible donated to the U.S. Supreme Court by Justice John Marshall Harlan in 1906. That bible has been signed by justices joining the Supreme Court for more than 100 years.

The Bibles were donated by Retired Judges of America and presented by retired Baton Rouge City Judge Darrell White. White said he has presented 20 to 30 similar Bibles on behalf of RJA since the organization began a campaign last year to distribute them.

The campaign, White said, is designed to encourage judges to hold fast to principles inherit in the U.S. Constitution and Declaration of Independence.

White said those principles include a belief in God and the teachings of the Bible and often are absent in today’s court rooms.

“That might make some people uncomfortable, but it’s the reason that ‘In God We Trust’ is on our money and all over Washington, D.C.,” White said.

Judges who accepted the Bibles were Pineville City Court Judge Phillip Terrell, 9th Judicial District Court Judge Harry F. Randow, former Alexandria City Court Judge George Foote, 9th Judicial District Court Judge John Davidson and 28th Judicial District Court Judge J.P. Mauffray Jr.

“If we look at history, a lot of nations have come and gone,” White said. “America is a great nation, but a nation can’t shake its fist in God’s face and still expect God’s blessings.”

Terrell said he is proud that his name will be among the first in Pineville’s copy of the Harlan Bible.

“It’s a honor to accept the Bible on behalf of (Pineville) City Court,” he said. “I was very touched and moved. We frequently forget that the laws we use every day in court come from the laws of God.”

Justice Harlan, who donated the original Bible that bears his name to the Supreme Court, is best remembered as the lone dissenting voice in the 1896 Plessy v. Ferguson case, in which a Louisiana statue that called for “equal but separate accommodations for the white and colored races” was upheld as constitutional.

The Town Talk - http://www.thetowntalk.com/ - Alexandria-Pineville, Louisiana:
http://www.thetowntalk.com/apps/pbcs.dll/article?AID=/20080130/NEWS01/801300322/1002

One day in the U.S. House of Representatives, a bill was taken up appropriating money for the benefit of a widow of a distinguished naval officer. Several beautiful speeches had been made in its support. The Speaker was just about to put the question when Congressman Davy Crockett arose to object.

Click here to find out why!

Retired Judges of America is replicating this venerable tradition in other courts throughout America.  If you would like to help with the expenses associated with this noble undertaking, go to the donation page and become a friend of Retired Judges of America.  After all, there are no innocent bystanders; only those guilty of bystanding! 

I think it has moved now into indignation.”

One of the purposes of Retired Judges of America is to call into question the rulings of courts that violate the principles of the American Experiment.  This case is a clear example of judicial tyranny over civil liberty.  Parental choice in education strikes at the heart of the American pioneering spirit.  The argument could be made that educational choices that families make are guaranteed by the birth certificate of our nation, the Declaration of Independence and that home educating one’s students is both a God-given right to liberty and to the pursuit of happiness*. 

RJA’s mission is to illuminate how these “organic” foundational laws of our nation still apply and to promulgate them to the next generation. 

Dissenting in Moore v. City of East Cleveland, Justice Byron White wrote, “The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”

We, the Retired Judges of America, condemn this act of judicial activism and call on the California Supreme Court to overturn the Appellate Court’s ruling.

*In 1920 the Supreme Court asserted that parent’s rights to raise and educate their children was a “fundamental” type of “liberty” protected by the Due Process Clause. See generally, Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). This liberty includes the “right to the care, custody, management and companionship of [his or her] minor children” which is an interest “far more precious than property rights” May v. Anderson, 345 US 528, 533 (1952).

Ironically, it was exactly fifty years ago this August that the chief justices of ten states joined together to issue a report critical of our federal judicial system with the following language: “It has long been an American boast that we have a government of laws and not of men.”  That document, entitled “REPORT OF THE COMMITTEE ON FEDERAL STATE RELATIONSHIPS AS AFFECTED BY JUDICIAL DECISIONS” went on to complain that “… the Supreme Court too often has tended to adopt the role of policy-maker without proper judicial restraint.” 

Gaining steam, they went on, “We do not believe that either the framers of the original Constitution or the possibly somewhat less gifted draftsmen of the Fourteenth Amendment ever contemplated that the Supreme Court would, or should, have the almost unlimited policy-making powers it now exercises. It is strange, indeed, to reflect that under a constitution which provides for a system of checks and balances and of distribution of power between national and state governments one branch of one government - the Supreme Court - should attain the immense, and in many respects, dominant, power which it now wields.”

In refreshing if uncharacteristic criticism of their judicial brethren, those state chief justices went on, “We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from one year to seventy-five, or even ninety-five years. (See the tables appended to Mr. Justice Douglas’ address on Stare Decisis, 49 Columbia Law Review 735,756-758.) The Constitution expressly sets up its own procedures for amendment, slow or cumbersome though they may be.”

More to the point, the report notes, “It is our earnest hope which we respectfully express, that that great Court exercise to the full its power of judicial self-restraint by adhering firmly to its tremendous, strictly judicial powers and by eschewing, so far as possible, the exercise of essentially legislative powers when it is called upon to decide questions involving the validity of state action, whether it deems such action wise or unwise. The value of our system of federalism, and of local self-government in local matters which it embodies, should be kept firmly in mind, as we believe it was by those who framed our Constitution.  At times the Supreme Court manifests, or seems to manifest, an impatience with the slow workings of our federal system. That impatience may extend to an unwillingness to wait for Congress to make clear its intention to exercise the powers conferred upon it under the Constitution, or the extent to which it undertakes to exercise them, and it may extend to the slow processes of amending the Constitution which that instrument provides.

The words of Elihu Root on the opposite side of the problem, asserted at a time when demands were current for recall of judges and judicial decisions, bear repeating: “If the people of our country yield to impatience which would destroy the system that alone makes effective these great impersonal rules and preserves our constitutional government, rather than endure the temporary inconvenience of pursuing regulated methods of changing the law, we shall not be reforming. We shall not be making progress, but shall be exhibiting that lack of self-control which enables great bodies of men to abide the slow process of orderly government rather than to break down the barriers of order when they are struck by the impulse of the moment.” (Quoted in 31 Boston University Law Review 43.)  

We believe that what Mr. Root said is sound doctrine to be followed towards the Constitution, the Supreme Court and its interpretation of the Constitution. Surely, it is no less incumbent upon the Supreme Court, on its part, to be equally restrained and to be as sure as is humanly possible that it is adhering to the fundamentals of the Constitution with regard to the distribution of powers and the separation of powers, and with regard to the limitations of judicial power which are implicit in such separation and distribution, and that it is not merely giving effect to what it may deem desirable.”

The committee concluded its report with this language: “The value of a firm statement by us lies in the fact that we speak as members of all the State appellate courts with a background of many years’ experience in the determination of thousands of cases of all kinds.  Surely there are those who will respect a declaration of what we believe.  And it just could be true that our statement might serve as an encouragement to those members of an independent judiciary who now or in the future may in their conscience adhere to views more consistent with our own.”

Despite James Madison’s observation that “in republican government, the legislative power necessarily predominates” (Federalist #51), the past fifty years has seen a steady encroachment of legislative authority by the judiciary on many levels.  And, correspondingly, we have experienced a decline in public respect for the judicial branch.  Only time will tell what will be the conclusion of this individual case.  Meanwhile, Retired Judges of America will work toward restoring proper constitutional balance at all levels, mindful of Justice Byron White’s admonition that “The court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no recognizable roots in the language or design of the Constitution.”