Supreme Court Weighs 'Under God' Reference in Pledge [Scalia Recuses Self]

Wash Post ^ | 10/14/03 | Charles Lane

[William McKinley]

The Supreme Court announced today that it will attempt to settle the legal battle over the Pledge of Allegiance -- but without the participation of one of its most conservative justices...

But, in a surprise move, Justice Antonin Scalia recused himself from the case, leaving only eight justices to hear arguments and reach a judgment. In the event of a 4-4 tie vote, the ruling of the San Francisco-based federal appeals court that struck down the pledge in schools would stand.

[sarasmom]

Just ask the Schindler family what happens when even the barest notion of God is totally removed from the courts and the government of the USA.
Better be quick though, at 2:00 tomorrow, they yank her feeding tube by court decree.

[cake_crumb]

While using his personal opinion of an appeals court ruling concerning a political rally is really stretching the boundry of excuse for recusal, Scalia may sense he's a target because he's a conservative. He may wish to ensure the SCOTUS decision - if it overturns the 9th Circuit's stupid Pledge ruling, I hope to God - be above reproach from the usual suspects. Of course, you can't overturn the SCOTUS either, so even that is stretching the reasoning a bit.

[torchthemummy]

Is it just me or does not the USSC have an official benediction before every session? I know Congress does!

[jwalsh07]

Exactly. No one will die from this particular decision going the wrong way, and it might actually wake up America.

Exactly wrong. The history of 20th Century American jurisprudence is the expansion of precedent to make law in the wrong branch of government.

[easonc52]

One would perhaps think that saying a pledge - or saying God in a pledge - really doesn't seem to have any effect on the prosperity and success of this nation.

You may be correct on some level, but the main point is, that there are movements in our country, to remove all refernces to 'God', from our schools, from the airwaves, etc.

Are they now going after removing 'God' from the 'Ten Commandments'? Which seems to be a fairly good map of treating others as you would like to be treated.

[easonc52]

Thanks for the pic!!!

[Pegita]

I wonder what we would do if the God of every insurance policy ... the God that is responsible for all manner of disaster and tragedy ... stepped across all those legal pages and showed Himself to a country that relegates Him to the lawyers. Seems to me if He can't be on our lips, He shouldn't be found in legal papers, either. Consider how much He has saved the insurance industry ... (Until such time as this can no longer be said, God have mercy on us all ...)

[Unknown Freeper]

Would someone please explain something to me regarding this case? I'm sorry if this has been discussed already. I still do not undertand how the father had standing. I was under the impression that the parents were divorced/separated and that the mother was the custodial parent. I also understood that the mother and the daughter were religious and attended church regularly. How does the athiest father get this case to SCOTUS?

[davidosborne]

or saying God in a pledge - really doesn't seem to have any effect on the prosperity and success of this nation.

The Bible says...

Psa 33:12 Blessed [is] the nation whose God [is] the LORD; [and] the people [whom] he hath chosen for his own inheritance.

Saying you don't believe something to be true does not make you right... Are you willing to risk our Nations prosperity by pretending that the Bible is NOT the Word of God? I don't put much faith in what PEOPLE say unless they are willing to acknowledge the Bible as the Word of God. The reason I trust George W. Bush is NOT because he is a Republican... its because I know that he acknowledges God as the Source of wisdom... America Prospers because of the FAITH of our FOREFATHERS and will ONLY continue to prosper if we continue in that FAITH..... There is no magic in the words of our pledge.. but it will speak volumes of our Nation if we allow humanism to replace our Christian Herritage.

David

[cake_crumb]

Doesn't matter. It's part of our history and our culture now. No one had a problem with it for years, until the father of a little girl (who suppsrts the Pledge in it's entirety) started a suit to get rid of it in a bid to hurt her mother. In other words, a nasty custody battle has grown to the point where it's seeped in and excised part of the common cultural history of 250 million people who are NOT part of the custody battle. Go troll elsewhere.

[easonc52]

It may seem to be a mystery, but I guarantee it's driven by those who would have 'God' driven out of every aspect of our lives that can remotely be connected to government (which is beginning to seem like about everything).

[TeleCom]

This court makes me nervous. Maybe the WP got it wrong.

[davidosborne]

Of course, you can't overturn the SCOTUS either, so even that is stretching the reasoning a bit.

Sure you can .... Its called a Constitutional Ammendment..

[easonc52]

Go troll elsewhere.

amen

[lambo]

It only requires four votes for a grant of certiorari (which I think you know, since I seem to recall from reading other posts that you're a lawyer). The question is whether Scalia voted for cert. and then recused himself, or didn't participate in the vote. My guess is that he didn't vote. That means Rehnquist, Thomas, O'Connor and Kennedy (at least) voted to grant. Stevens and Ginsburg will vote to affirm. Souter and Breyer are the swings, and I'll just bet one of them votes to overturn.

[davidosborne]

My pleasure.. I found it on an earlier thread on this same topic..

[Looking for Diogenes]

Nothing requires Scalia to recuse, neither the rules of the SCOTUS or his speaking out on the issue.

The Code of Conduct for the Federal Judiciary includes this important item:

(6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.
JUDICIARY POLICIES AND PROCEDURES: CODES OF CONDUCT

Scalia probably felt (or someone convinced him) that he had commented on the merits of the case. If so, it would appear that he was right to have recused himself. In the future, he'd best address in public only those issues that are not being actively litigated.

[davidosborne]

No. 02-1624 Status: PENDING
Vide 02-1574, 03-7
Title: Elk Grove Unified School District and David W. Gordon, Petitioners
v.
Michael A. Newdow

Docketed: May 9, 2003
Lower Ct: United States Court of Appeals for the Ninth Circuit
Case Nos.: (00-16423)
Decision Date: February 26, 2002
Rehearing Denied: February 28, 2003

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 30 2003 Petition for writ of certiorari filed. (Response due June 9, 2003)
Apr 30 2003 Appendix of Elk Grove Unified School District and David W. Gordon filed.
May 22 2003 Brief amicus curiae of United States Senate filed. VIDED.
May 30 2003 Brief amicus curiae of Bipartisan Legal Advisory Group of US House of Representatives filed. VIDED.
May 30 2003 Brief amicus curiae of American Legion filed. VIDED.
Jun 10 2003 Brief amici curiae of Idaho, et al. filed. VIDED.
Jun 17 2003 Brief amici curiae of Texas Assn. of School Boards Legal Assistance Fund, et al. filed. VIDED.
Jun 18 2003 Brief amicus curiae of Gray Davis, Governor of CA filed. VIDED
Jun 24 2003 Motion for leave to file amici brief filed by Pacific Legal Foundation, et al.
Jun 26 2003 Brief amicus curiae of Americans United for Separation of Church and State filed. VIDED.
Jun 27 2003 Brief of Michael A. Newdow in opposition filed. VIDED.
Jun 27 2003 Brief amici curiae of Dirk Kempthorne, et al. filed. VIDED
Jun 30 2003 Brief amici curiae of Christian Legal Society, et al. filed. VIDED.
Jul 3 2003 Brief amicus curiae of Eagle Forum & Legal Defense Fund filed.
Jul 7 2003 Opposition of Michael Newdow to motion of Sandra Banning filed. Vided.
Jul 7 2003 Motion for leave to file amicus brief filed by Rutherford Institute.
Jul 25 2003 Reply of petitioner Elk Grove Unified School District and David W. Gordon filed.
Sep 10 2003 DISTRIBUTED for Conference of September 29, 2003.
Sep 17 2003 Letter of Michael A. Newdow received. (Distributed)
Sep 22 2003 Letter of Solicitor General in response to respondent's letter received. (Distributed)
Sep 22 2003 Letter of counsel for Sandra Banning received. (Distributed)
Sep 25 2003 Letter from counsel for amicus curiae Americans United for Separation of Church and State received. (Distributed)
Oct 6 2003 DISTRIBUTED for Conference of October 10, 2003.

---

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Terence John Cassidy Porter, Scott, Weiberg & Delehant (916) 929-1481
350 University Avenue
Suite 200
Sacramento, CA 95825
Party name: Elk Grove Unified School District and David W. Gordon

Other:
Patricia Mack Bryan Office of Senate Legal Counsel (202) 224-4435
642 Hart Senate Office Bldg.
Washington, DC 20510
Party name: United States Senate


Lawrence C. Wasden Office of the Attorney General 700 W. Jefferson St. (208) 334-2400
Boise, ID 83720-0010
Party name: Idaho, et al.


Geraldine R. Gennet General Counsel (202) 225-9700
US House of Representatives
219 Cannon House Office Bldg.
Washington, DC 20515
Party name: Elk Grove Unified School District and David W. Gordon v. Michael A. Newdow


Eric L. Hirschhorn Winston & Strawn, LLP (202) 371-5700
1400 L Street. NW
Washington, DC 20005
Party name: American Legion


Lisa A. Brown 711 Louisiana, Suite 2900 (713) 223-2900
Houston, TX 77002-2781
Party name: Texas Assn. of School Boards Legal Assistance Fund, et al.


Theodore Garelis Office of the AG, 1300 I Street, P.O. Box 944255 (916) 445-0767
Sacramento, CA 94244-2550
Party name: Gray Davis, Governor of CA


David H. Remes Covington & Burling (202) 662-5212
1201 Pennsylvania Ave., NW
Washington, DC 20004
Party name: Americans United for Separation of Church and State


Kenneth W. Starr Kirkland & Ellis (202) 879-5000
655 Fifteenth Street. N.W.
Washington, DC 20005
Party name: Sandra Banning


Sharon L. Browne Pacific Legal Foundation, et al. (916) 362-2833
10360 Old Placerville Road
Suite 100
Sacramento, CA 95827
Party name: Pacific Legal Foundation, et al.


Michael A. Newdow P. O. Box 233345 (916) 427-6669
Sacramento, CA 95823
Party name: Michael A. Newdow


Gregory S. Baylor Center for Law & Religious Freedom (703) 642-1070
Christian Legal Society
4208 Evergreen Lane, suite 222
Annandale, VA 22003
Party name: Christian Legal Society, et al.


L. Michael Bogert Counsel to Governor (208) 334-2100
State Capitol
P.O. Box 83720
Boise, DC 83720
Party name: Dirk Kempthorne, et al.


Phyllis Schafly Eagle Forum Education & Legal Defense Fund (314) 721-1213
7800 Bonhomme Avenue
St. Louis, MO 63105
Party name: Eagle Forum & Legal Defense Fund


Steven H. Aden 1440 Sachem Place (434) 978-3888
Charlottesville, VA 22901
Party name: Rutherford Institute


Theodore B. Olson Solicitor General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Room 5614
Washington, DC 20530-0001
Party name: Elk Grove Unified School District, et al.

[rwfromkansas]

What the heck?

We might lose this one now. Thanks Scalia.

[jwalsh07]

hat code is not applicable to the SCOTUS and it should not be. Abortion has been litigated continously for more than thirty years. The same for affirmative action. And for the "Wall of Separation". To expect SCOTUS justices to remain silent on said issues is nutty.

The result would be a star chamber.