Courting O'Connor

Why the chief justice isn't the Chief Justice

Sandra Day O'Connor's voice betrayed just a trace of exasperation as she addressed the atheist pleading his case before the Supreme Court of the United States.

His name is Michael Newdow, and he believes that the phrase "under God" does not belong in the Pledge of Allegiance, which his daughter and other children are asked to recite in public school each morning. The Supreme Court decided more than 60 years ago that no child can be forced to recite the pledge. But, to Newdow, the fact that his child must choose between listening to a state-drafted affirmation of God's existence or risking ostracism by excusing herself is a violation of the Constitution's ban on officially established religion.

Newdow, an intense, wiry man with close-cropped gray hair who holds both medical and law degrees, was allowed to argue his case personally -- and, on that March day, he was doing a surprisingly nimble job. When Justice Stephen G. Breyer suggested that the God of the pledge is, perhaps, "a very comprehensive supreme being," too generic to justify Newdow's objection, the atheist shot back, "I don't think I can include 'under God' to mean no God."

O'Connor seemed uncomfortable with that.

"And you have no problem with 'In God We Trust' on the coins, and that sort of thing?" she inquired.

"If my child was asked to stand up and say, 'In God We Trust,' every morning in the public schools led by her teachers . . . " Newdow began.

"It's all right for her to have the coins and use them and read them, but it's the problem of being asked to say the pledge, which she doesn't have to say?" O'Connor countered.

"Well, first of all, under Lee v. Weisman, she is coerced," Newdow said, citing a 1992 case in which a five-vote majority of the court ruled that an officially sponsored invocation at a public high school graduation was unconstitutional because it would make nonreligious students feel coerced to join in.

O'Connor cut him off. She knew all about Lee v. Weisman because she was in the majority. "Now, wait a minute," she said, "we have other authorities saying that no child is required to say the pledge."

"And no child was required to be at the graduation [in] Lee v. Weisman," Newdow replied.

"That was a prayer," O'Connor pointed out.

Hers is a familiar and authoritative voice in the courtroom, with its 44-foot-high ceiling, two dozen massive columns of Italian marble and 280-square-foot friezes depicting lawgivers from Hammurabi to Moses to Solon. The grandiose space sends a silent message to every member of the audience: The law soars above us all. Only the nine justices occupy a position of exaltation. They enter theatrically -- cued by a high-pitched whistle, followed by a single rap of the marshal's gavel -- through slits in a gigantic red velvet curtain, then climb into high-backed leather chairs behind an imposing mahogany bench.

O'Connor sat just to the left of Chief Justice William H. Rehnquist as the justices sized up Newdow. She is not, and never has been, very much like Newdow. They represent antithetical approaches to the law and to life. When people say, as they often do, that O'Connor is the most powerful woman in America, they are not referring to the power that comes from planting the banner of some fixed principle and rallying people around it, as Newdow was trying to do. Rather, O'Connor's is the power of the persuadable mind -- of a pragmatic sensibility in possession of a strategic asset: her vote.

As the key centrist on a Supreme Court polarized between liberals and conservatives, the silver-haired Republican moves the court according to the credo she articulated in a speech three years ago to members of the Nebraska Bar Association: "The rule of law must . . . be flexible enough to adapt to different circumstances."

Newdow had little chance of winning his case without O'Connor's vote. And, indeed, he lost. When the court voted 8 to 0 last month to let the pledge stand as it is, O'Connor's opinion showed that, for her, the case was simple: No reasonable person, aware of the country's history and tradition, would agree with Newdow that "under God" is government endorsement of religion.

In another sense, though, Newdow fought O'Connor to a draw during oral arguments. His contention that a public-school-sponsored pledge recitation runs afoul of Lee v. Weisman was hardly far-fetched. Indeed, it would appear that the clear, unequivocal line Newdow wanted the court to draw is quite consistent with the one that it traced in Lee. It is O'Connor's view that requires some legal hair-splitting -- even though it is certainly more in line with what the public thinks. That may be why, in this case, five of the eight justices who rejected Newdow did so on procedural grounds, ducking the constitutional issue.

By the end of the pointed exchange between O'Connor and Newdow, we had a better idea of who might win the case. But we came no closer to answering the key question raised by O'Connor's career as a justice: Can the rule of law, as practiced by the Supreme Court, become so "flexible" that it doesn't mean much more than the rule of Sandra Day O'Connor?

IN THEORY, EVERY SUPREME COURT JUSTICE'S VOTE IS UP FOR GRABS IN EVERY CASE. In reality, the court's members follow clear ideological patterns. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Breyer are liberals. Justices Antonin Scalia, Clarence Thomas and Rehnquist are the court's reliable conservatives. Not only is the court polarized with respect to abortion, affirmative action, states' rights and the death penalty, it is deeply divided on questions of judicial philosophy, with the liberals favoring a wider role for the courts in defining and protecting constitutional rights, and the conservatives espousing judicial restraint.