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Pledge Case Argued Today

Brown said:
Sure. If you quote me at length, give credit where it's due.
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Absolutely, but....

Should it just be "Brown - JREF poster". Or would you prefer another name/title?

You may PM if you wish to keep your name private.
 
Newdow got high marks on his argument from this Washington Post commentator (registration required). Wisely, he practiced, practiced, practiced.

And that is what the pros do. They argue the case over and over to mock courts, and the members of the mock courts ask hard questions, trick questions, questions out of right field, questions about the most minute details of the facts... so that the advocate can be prepared for almost any question that comes his way. An oral argument before the US Supreme Court is not just an argument, it's a performance. And Newdow rehearsed and apparently held his own.

The Post commentator reports an additional detail that I found interesting:
When Newdow, a physician who also has a law degree but no appellate court experience, said "under God" was "divisive," Chief Justice William H. Rehnquist saw an opportunity to trip up a novice.

"Do we know what the vote was in Congress . . . to adopt the 'under God' phrase?" Rehnquist asked, feigning ignorance of the fact that it had passed unopposed in 1954.

When Newdow acknowledged as much, the chief justice pounced: "Well, that doesn't sound divisive."

But Newdow would not be ambushed: "That's only because no atheist can get elected to public office," he countered, evoking spontaneous laughter and a sound rarely, if ever, heard at oral argument in Rehnquist's tightly run courtroom -- applause.

Rehnquist restored order with a threat to clear the room. (emphasis mine)
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I had not realized that Rehnquist tried to set a trap--and not a very good one at that--and it backfired on him.

And besides, Newdow was right about this point, and Rehnquist should have known better. Geez, if you stepped out of line in 1954, if you showed any sign of being out of lock step with the patriots, if you so much as let on that you didn't believe in the Almighty, well then you ran the risk of being branded an atheistic commie pinko sympathizer, and then you were really out of luck.
 
Regnad Kcin said:
Brown For President!
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Screw that. Get me on the Supreme Court. I've always wanted to learn how to hunt ducks.
 
Brown said:
Screw that. Get me on the Supreme Court. I've always wanted to learn how to hunt ducks.
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Get me on the court, too. I don't want to hunt ducks, but I want to send all of the bend-it-to-my will types right on home with their nose out of joint!

President? You'd have to be NUTS to take that job, man!
 
Brown said:
And besides, Newdow was right about this point, and Rehnquist should have known better. Geez, if you stepped out of line in 1954, if you showed any sign of being out of lock step with the patriots, if you so much as let on that you didn't believe in the Almighty, well then you ran the risk of being branded an atheistic commie pinko sympathizer, and then you were really out of luck.
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Great point. Never ask a question that you don't already know the answer to.
 
Here's an interesting summary of the oral argument from the New York Times (registration required). The Times quotes Newdow's closing remarks, which were no doubt carefully rehearsed:
There's a principle here, and I'm hoping the court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all.
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Brown said:
Here's an interesting summary of the oral argument from the New York Times (registration required). The Times quotes Newdow's closing remarks, which were no doubt carefully rehearsed:
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Newdow is a sharp cookie. If the court actually takes a stand it will be a major ruling weather or not it goes to Newdow. I personally would not want be sitting on that court since ruling for Newdow will start a civil war even if it is absolutely the right thing to do.

I only wish that those that would criticize the ruling (or any court ruling for that matter) would actually read it first and not just the bold headlines in the newspaper.

My uninformed guess is that they will find a way to avoid ruling in this case.

BTW: thanks Brown.
 
Rocky said:


Newdow is a sharp cookie. If the court actually takes a stand it will be a major ruling weather or not it goes to Newdow. I personally would not want be sitting on that court since ruling for Newdow will start a civil war even if it is absolutely the right thing to do.

I only wish that those that would criticize the ruling (or any court ruling for that matter) would actually read it first and not just the bold headlines in the newspaper.

My uninformed guess is that they will find a way to avoid ruling in this case.
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So the easy way out is to deny standing, right? In that way, they don't have to make a ruling.

However, if they do that, then doesn't the District Court ruling that the addition is unconstitutional still hold? Or does it overturn that ruling because of the lack of standing?
 
Brown said:
And besides, Newdow was right about this point, and Rehnquist should have known better. Geez, if you stepped out of line in 1954, if you showed any sign of being out of lock step with the patriots, if you so much as let on that you didn't believe in the Almighty, well then you ran the risk of being branded an atheistic commie pinko sympathizer, and then you were really out of luck.
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I find it disturbing that the Supreme Court even looks to popularity in determining whether a law is constitutional or not. Suppose congress passed a law that said that everyone named "Percival" would be burned at the stake, with all their money given to the people of their hometown. Now, given the number of Percivals in the country, you could imagine a situation where there is overwhelming support for this measure. Everyone in congress votes for it, and people all over are in favor, except for those named Percival or their friends/family (and maybe not even them). You could do a public opinion poll and find that 99.999% of the citizens support this law.

Does that make it constitutionally allowed?

Hey, it only affects a few people, and no one in the legistlature.
 
Brown said:
Thanks for the compliment. No, I didn't file an amicus brief here, although it would have been a fun case to brief.

If I had drafted an amicus brief, I might have approached the issue from a different angle. Is inclusion of "under God" in the Pledge a correct recitation? After all, if I'm making a solemn promise, shouldn't I be pledging truthfully rather than falsely? So: is it correct to say that this nation is "under God?"
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Great post. It would seem to me, though, that the Court would defer to the legislature on the factual determination of whether the pledge is technically correct (that the United States is in fact a nation "under God", or for that matter that it is truly "indivisible" or offers "liberty and justice for all").

I take it from your post that, if the occasion had presented itself, you'd have briefed this case in Newdow's favor. Is that correct?

The reason I ask is that, while I'd have been intrigued to take a crack at such a brief myself, and I have a lot of respect for the way Newdow's argued this matter, from a more detached professional standpoint I think the Constitution does not favor Newdow's case. I'd happily see "under God" disappear from the Pledge, but the lawyer in me grudgingly believes that the Ninth Circuit probably ruled the wrong way on this one (as it is wont to do, some might say).
 
pgwenthold said:
However, if they do that, then doesn't the District Court ruling that the addition is unconstitutional still hold? Or does it overturn that ruling because of the lack of standing?
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It would undermine Newdow's lawsuit ab initio.
 
Perhaps the courts should take some advice from an unlikely source and "render unto Caesar,that which is Caesar's."
 
Excerpts from the oral argument have been published by the New York Times (registration required).

I noted yesterday that President Bush was on record as saying that "under God" was, in effect, a prayer. But I also added:
Originally posted by me
The funny thing about all this is (if you have a really dark sense of humor) is that what George Bush said is possibly irrelevant. What all the legislators said back in the 1950s is possibly irrelevant. What Ike said in his proclamation is possibly irrelevant. The Court could choose to ignore all of it.

The reason is that the Court sometimes ignores the intent of the individual lawmakers, focusing instead on the intent of the legislative body as a whole. (And there's some logic to this rule. The president or a legislator might say what he thinks the law means, but his interpretation is not the law, and should not be binding on the Court. The Court can take his views into consideration, but it does not have to agree with them.)
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Here is an excerpt from yesterday's argument:
MR. NEWDOW: Well, I'm not sure this isn't a prayer, and I'm -- I am sure that the Establishment Clause does not require prayer. President Bush, and this is in the Americans United brief, stated himself that when we ask our citizens to pledge allegiance to one nation under God, they are asked to participate in an important American tradition of humbly seeking the wisdom and blessing --

JUSTICE O'CONNOR: Yeah, but I suppose reasonable people could look at the pledge as not constituting a prayer.

MR. NEWDOW: Well, President Bush said it does constitute a prayer.

CHIEF JUSTICE WILLIAM H. REHNQUIST: Well, but he -- we certainly don't take him as the final authority on this.

(Laughter.)
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Notice the laughter. I guess some folks share my dark sense of humor. I also said that backpedaling on the meaning of the words in issue struck me as dishonest. Here is how Dr, Newdow put it:
MR. NEWDOW: Well, it's -- again, the Establishment Clause does not require a prayer. To put the Ten Commandments on the wall was not a prayer yet this Court said that violated the Establishment Clause. To teach evolution or not teach evolution doesn't involve prayer, but that can violate the Establishment Clause. The issue is is it religious, and to say this is not religious seems to me to be somewhat bizarre.

And as a matter of fact, we can look at the standing argument and we can look at Elk Grove Unified School District's brief, in which eight times they mention that this is the mother involved with religious upbringing, they keep talking about religious upbringing, 18 times they spoke about religious education, religious training, religious interest. All of this has to do with religion, and to suggest that this is merely historical or patriotic seems to me to be somewhat disingenuous.
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And here's a surprising question from Justice Breyer. This question strikes me as a "public relations"-type question, a softball question about which Justice Breyer almost certainly has strong views already:
JUSTICE BREYER: So it's not perfect, it's not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why -- why the country cannot do that?
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Dr. Newdow's reply:
Well, first of all, for 62 years this pledge did serve the purpose of unification and it did do it perfectly. It didn't include some religious dogma ...
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Justice Breyer's feigned ignorance at "why can't the country do that?" may have prompted Justice Rehnquist to feign ignorance about the unanimous adoption of the words in question, which followed seconds later. Interesting dynamic.

I have also mentioned that it is not only atheists who oppose inclusion of "under God" in the Pledge. Some people deem the recitation of "under God" to be a violation of the commandment prohibiting taking the name of the Lord in vain. To my surprise, this issue came up during the oral argument by the lawyer representing the school district:
JUSTICE STEVENS: May I ask you just one question? ...One of the amicus briefs filed in this case has this sentence in it. I'd like you to comment on. If the religious portion of the pledge is not intended as a serious affirmation of faith, then every day government asks millions of school children to take the name of the Lord in vain. Would you comment on that argument?

MR. CASSIDY: I would disagree, because we feel that the use of the term, one nation under God, reflects a political philosophy, and the political philosophy of our country, as set forth in the Declaration of Independence, is that ours is one of a limited government, and that is the philosophy that's now more enhanced, more reflected in the 1954 act.
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David Greenberg has an interesting commentary in the Christian Science Monitor (Randi may mot like them, but the have probably the most honest and fair newspaper on earth).


The high court will almost certainly capitulate to popular sentiment and let the phrase stand. But if the justices scrutinize the claims of the Bush administration, which is defending the God-infused pledge, and look at the history of the matter, they should reach a different verdict.
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The only intellectually honest course is to forbid the public-school recital of the religious version of the oath. That verdict won't be popular. But then again, the need to uphold rights against popular pressures is the reason we have an independent judiciary in the first place.
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The whole thing is HERE
 
Related lawsuit.

From the article:

A federal judge has rejected a challenge to chaplains in Congress, in a lawsuit filed by the same man who wants the words "under God" removed from the Pledge of Allegiance.

U.S. District Judge Henry H. Kennedy Jr. on Wednesday rejected Michael Newdow's claim that taxpayer-funded chaplains in Congress violate the constitutional ban on government-sponsored religion.
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