The Oath of Office: A Pillar of the Rule of Law

Keynote Speech

Thank you for inviting me to be the keynote speaker at the University of Pennsylvania Law Review’s Annual Banquet—a banquet which I attended thirty-two years ago when I was an Articles Editor for the Law Review.

Tonight, I would like to focus on a rite of passage that may appear, at first blush, to be somewhat prosaic, but which in fact carries deep meaning and bears tremendous weight; and which—if ignored or minimized—can have consequences that send shock waves through the ether. What I speak of are the oaths we take in life. Let me repeat that: the oaths we take in life.

And let me be clear: I am not talking about the use of the word oath as it concerns strong words to express large emotions often attributed to cartoon characters.¹ For example, “dag nabbit,” “sufferin succotash,” or “doh!”

Tonight, I focus on the other usage of the word: a solemn promise regarding one’s future action or behavior usually concerning one’s service to society.²

For example:

Hear my words and bear witness to my vow . . . . Night gathers, and now my watch begins. It shall not end until my death. I shall take no wife, hold no lands, father no children. I shall wear no crowns and win no glory. I shall live and die at my post. I am the sword in the darkness. I am the watcher on the walls. I am . . . the shield that guards the realms of men. I pledge my life and honor to the Night’s Watch, for this night and all the nights to come.³

We now all understand that “[y]ou know nothing, Jon Snow.”⁴ Nevertheless, his is the kind of oath I am talking about.

Perhaps, at this early stage in your career, you may not have taken any oaths. But if you have not yet, you will soon. That is because, as a young lawyer, you will face a sea of oaths—to become admitted to practice in any state, to become a member of a particular court, to take a government position or a job as a law clerk for a judge. The first thing you will have to do before you start work is to swear an oath.

The specific words found in the oaths you take will vary. But there are throughlines. They will speak of professionalism, integrity, and service to justice. They will talk of the highest ethical standards and of advocating for clients with diligence and honesty. They will underscore your duty, as a lawyer, to the courts, and of candor to your clients and your adversaries. They will focus your attention on ensuring fairness and the proper administration of justice while respecting the rights of all parties. And often, they will remind you of the need for civility and of the normative mandate to contribute to the legal profession and to the broader community through pro bono service and public interest work.

Throughout human history, oaths have been a key link in the chain that connects groups of people together. In ancient Greece, for example, oaths were sworn to the Gods—usually Zeus, the great overseer of all oaths. If you broke an oath, the punishment—exacted swiftly by the witnessing Gods—was death or extinction of your family line.⁵ It was common advice not to sail on the same ship with perjurers (oath breakers by definition) for fear that the ship would be wrecked even at the cost of innocent lives. See also (and Executive Editors, note the proper Bluebook usage, I hope, of “see also”) see also The Odyssey: Odysseus’s starving men break their oath not to kill and eat any of Hyperion’ cattle.⁶ Zeus exacts swift punishment by sinking their ship, saving only Odysseus.⁷

Likewise, when Socrates was on trial for his life, he refused to beg for mercy from his jury because they had sworn an oath to render judgment based purely on the laws and not on their own pleasure.⁸ Socrates, a good Athenian, believed that the only proper way to defend himself was by convincing the jurors that he was innocent, not by persuading them with an appeal to their emotions.⁹ If he had done the latter, he may have saved his own skin in the short term, but he would have condemned both himself and the jury to death for oath breaking.¹⁰

I am fairly certain, having seen them in action, that the trial lawyers of today do not share Socrates’ compunction. They do everything they can to appeal to the jury’s emotions and leave to me the job of making sure the jury follows the law in coming to a verdict.

Nevertheless, the point is that oaths matter. They were in ancient Greece the warp and weft of the fabric of society. And to this day they matter. Here I turn to the central point of my remarks today. Specifically, I want to focus on the oaths of office taken by judges and military personnel. They are a solemn and foundational aspect of our democratic system. These oaths are not merely ceremonial formalities; they are a profound commitment to uphold the principles that underpin our society. Central among these principles is the Rule of Law, which ensures that every individual and institution is subject to and accountable under the law.

The tradition of taking an oath before entering a judicial role dates back to colonial times when American officials swore allegiance to the British king. Then, as now, the oath served as a personal vow to perform one’s duties with integrity and fidelity.

In the United States, the framers of the Constitution recognized the importance of such commitments. Article VI mandates that all executive, legislative, and judicial officers, both at the federal and state levels, “shall be bound by Oath or Affirmation, to support this Constitution[.]”¹¹ This requirement was designed to ensure that those entrusted with power would remain faithful to the nations’ foundational document—the Constitution, the unifying force of the nation which sets out a tripartite system of government, each branch exquisitely balanced to provide checks and balances to the other. This document embodies the ideals and aspirations not only of people who are currently American citizens, but also serves as a beacon to those who seek to bring their talent, drive, and dreams to remake their homes in the United States.

The judicial oath has, of course, changed over time. In its first iteration, it read simply, “I do solemnly swear (or affirm) that I will support the Constitution of the United States.”¹² Now, federal judges are required to take two oaths before assuming their duties. The first is the general oath to support the Constitution, as outlined in 5 U.S.C. § 3331:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The second is the judicial oath specified in 28 U.S.C. § 453:

I, [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [title] under the Constitution and laws of the United States. So help me God.

These dual oaths carry profound significance. They emphasize a judge’s duty to uphold the Constitution and to administer justice impartially, ensuring that personal biases or external pressures do not influence their decisions. They also make it crystal clear that a judge’s loyalty runs to the Constitution—and none other.

Similarly, members of the U.S. Armed Forces take an oath that underscores their allegiance to the Constitution. Commissioned officers “solemnly swear . . . [to] support and defend the Constitution of the United States against all enemies, foreign and domestic[.]”¹³ Enlisted personnel take a similar oath, with the addition that they also swear to obey the orders of the President and the officers appointed over them.¹⁴ These oaths bind military leaders to the Constitution, reinforcing that their ultimate loyalty is to the nation’s laws and principles, rather than to individual leaders or transient policies.

As an illustration of the power of their words, I draw your attention to the oath taken by state officials in Germany before Hitler took power: “I swear loyalty to the Constitution, obedience to the law, and conscientious fulfillment of the duties of my office, so help me God.”¹⁵ Compare that to the oath required by Hitler after he took power: “I swear I will be true and obedient to the Führer of the German Reich and people, Adolf Hitler, observe the law, and conscientiously fulfill the duties of my office, so help me God.”¹⁶

It cannot be emphasized enough that the oaths taken by judges and military personnel are intrinsically linked to the Rule of Law. By swearing allegiance to the Constitution, these individuals affirm that their actions and decisions will be guided by established legal frameworks, not by personal whims or external influences. This commitment ensures consistency, fairness, and justice within our society.

For judges, the oaths underpin our duty to defend the constitution and interpret and apply the law impartially. Our sworn commitment to “administer justice without respect to persons” ensures that every individual, regardless of status or wealth, receives equal treatment under the law. This impartiality is crucial for maintaining public trust in the judicial system and for upholding the legitimacy of legal rulings.

In the military context, the oath reinforces the principle that service members are defenders of the Constitution and its values. This allegiance ensures that military actions are conducted within the bounds of the law and that orders are evaluated based on their legality. It prevents the misuse of military power and safeguards democratic governance by affirming that the Armed Forces serve the nation and its constitutional principles, not any individual leader.

You may ask, “what is ‘the Rule of Law?’” You will find that there is nothing in the Constitution of the United States or indeed in any specific statute that describes the term. But to borrow from Justice Stewart: “I shall not to[night] attempt [fully] to define [what] I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .”¹⁷

Indeed, while there are some arguments on the margins, the Rule of Law is generally recognized in democratic societies across the globe as encompassing a few core principles. Here, I dip into an excellent book written by Tom Bingham, at one time a Lord Chief Justice and Senior Law Lord in Britain:

• The law must be accessible to all and, so far as is possible, clear and predictable.¹⁸
• Questions of legal rights and liabilities should be resolved by application of the law and not the untrammeled exercise of discretion.¹⁹
• Laws should apply equally to all, and adjudicative procedures should be fair to all.²⁰
• The law must provide adequate protection to human right—though there is a lot of debate about what should or should not be included under the rubric of “human rights.”²¹
• Public officers—judges, legislators and the executive—must exercise the powers conferred on them fairly, in good faith, and for the purpose for which the powers were conferred, without exceeding the limits of such powers or exercising them unreasonably.²²

I would venture—without risk of any real challenge—that all my colleagues on the bench subscribe to these principles as key components of the Rule of Law. They are, in my view, instantiated in our oaths of office.

But while our oaths provide clear directives, adhering to them can present challenges. Judges may face public, political, or personal pressure to rule in a particular way. Nevertheless, our oaths oblige us to base our decisions solely on the law and the facts presented and to put aside any fear of reprisal.

Military brass might encounter unlawful orders. Obviously, there is some difficulty in the heat of action to determine whether an order is or is not lawful. But as retired U.S. Navy Admiral and former NATO Supreme Allied Commander James Stavridis recently explained to a Philadelphia audience, the oath requires military officers (if they choose to continue to serve) to uphold the Constitution, even if it means refusing such directives.²³

These scenarios underscore the courage and integrity required to honor the commitments fully. The oaths of office taken by judges and military personnel are more than mere words; they are solemn promises that fortify the Rule of Law in our nation. By pledging to support and defend the Constitution, judges and military personnel commit to a standard of conduct that ensures justice, equality, and the preservation of our democratic principles. It is through the unwavering adherence to these oaths that the fabric of our society remains strong and that the Rule of Law continues to prevail.

To conclude, when you take your first oath as you enter into this wonderful profession of ours, I urge you to consider carefully the words you state. Think on their meaning; carry their intent with you. If you do so, your oath will sustain you as a guardian of the Rule of Law, a patriot of our country, and a good lawyer to boot.

Thank you.

1. Oath, Oxford Eng. Dictionary (2004), https://www.oed.com/dictionary/oath_n?tab=‌meaning_and_use#34040894 [https://perma.cc/LM4L-U5ZL]; Minced Oath, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/minced-oath [https://perma‌.cc‌/M78N-NF3Y] (last visited Apr. 2, 2025). ↩︎
2. Oath, supra note 1. ↩︎
3. George R.R. Martin, A Game of Thrones 522 (2011). ↩︎
4. George R.R. Martin, A Storm of Swords 213 (2011). ↩︎
5. Hesiod, Theogony, in The Poems of Hesiod 31, 45 & n.188 (Barry B. Powell, trans., 2017); Herodotus, The Histories 383 (Robin Waterfield, trans., 2008). ↩︎
6. Homer, The Odyssey 135-38 (Samuel Butler, trans., 2011).
   [1] Id. at 138. ↩︎
7. Id. at 138. ↩︎
8. Plato, The Apology of Socrates, in Plato’s Apology, Crito and Phaedo of Socrates 10, 40-45 (Henry Cray, trans., 2013). ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. U.S. Const. art. VI, cl. 3. ↩︎
12. Off. of the Curator, Sup. Ct. of the U.S., Text of the Oaths of Office for Supreme Court Justices (2009), https://www.‌supremecourt.gov/‌about/oath/‌textof‌theoaths‌ofoffice08-10-2009.pdf [https://perma.cc/3AK4-DBRM]. ↩︎
13. 5 U.S.C. § 3331. ↩︎
14. 10 U.S.C. § 502. ↩︎
15. Oathes of Loyalty for All State Officials, Holocaust Encyc., https://‌encyclopedia.‌ushmm.‌org/content/en/article/oaths-of-loyalty-for-all-state-officials#:~:text=%E2%80%9CI%20swear%20‌loyalty%20to%20the,1419%2D1420.%5D [https://perma.cc/HY4W-4U79] (last visited Mar. 26, 2025). ↩︎
16. Id. ↩︎
17. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). ↩︎
18. See Tom Bingham, The Rule of Law 37-47 (2010). ↩︎
19. See id. at 48-54. ↩︎
20. See id. at 55-59. ↩︎
21. See id. at 66-84. ↩︎
22. See id. at 60-65. ↩︎
23. Admiral James Stavridis, NATO Supreme Allied Commander, Philadelphia Speakers Series Address at the Kimmel Center for Performing Arts (Feb. 25, 2025). ↩︎