Justice Scalia wants you to know that he's not going to tell you what he's pretty much telling you.

What a scamp this man is!

After giving a speech against the concept of an evolving Constitution, Justice Scalia at the University of Colorado was asked by a high school student about Colorado becoming the first state to allow recreational-pot sales...

Scalia smiled and said, “I’m not going to respond to that because it would force me to have to recuse myself” if the question ever went to the high court.

But he added, “the Constitution contains something called the Supremacy Clause,” which is the provision stating that federal laws trump state laws.

The justice was also asked when we’ll find out if the high court will take up the question of whether state same-sex marriage bans are constitutional.

“I know when, but I’m not going to tell you,” he reportedly replied, getting a big laugh from the audience. “Soon! Soon!” he added.

By the way, years ago, Justice Scalia did recuse himself in a case where he'd commented on the issue in public. It was the case about whether "under God" in the Pledge of Allegiance violates the Establishment Clause:

[I]n his talk to the Knights of Columbus, Justice Scalia... mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

[And] when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court — even his own....

The standard for recusal is vague — "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" — and there's a great deal of analysis of it at that last link by Vikram David Amar. Excerpt:

The truth is that Scalia's judicial opinions are often far more sweeping, far more dismissive, and far more harsh in their treatment of legal theories, contentions and cases — including fact-patterns not yet before the Court — than any of his extra-judicial public statements have been. And yet no one in the world thinks that simply because a Justice in a published opinion has made clear in passing, say, that he does not agree with an earlier ruling and would overrule it when given a chance, that he is "biased" against that ruling — in the sense that he cannot participate in a case that comes up in which the continued vitality of that ruling is squarely presented. Having opinions about the law is very different from being biased in a particular case.

But cases must be decided. It's the judge's duty. He doesn't have to fly about the country and the world doing speeches and question-and-answer sessions. There, he's choosing to speak, and what he says on those occasions may seem more freely spoken from his mind: I'm saying this because I've got a will to say it. Within the constraints of the opinion-writing duty, there is paradoxically greater freedom: I'm saying this because I must.

But, now, Newdow was a very special case. For one thing, the plaintiff Michael Newdow asked for the recusal and pushed that demand in the press. Another thing is, the Newdow case was to be decided in the presidential election year of 2004, and to leave the liberals to determine that "under God" couldn't be in the Pledge was to invite them to burden the Democratic candidate and help President George Bush get his reelection. (Remember how his father kicked Dukakis around over the Pledge in 1988?)

In Newdow, the liberals ended up figuring out some weird tweak on the standing doctrine and avoided saying something inopportune about the Establishment Clause and the Pledge. And that maneuver has always been enough for me — arguably, a reasonable person — to question their impartiality. But the recusal statute can't mean that. Otherwise, it would be recusals all the way down and nothing could ever be decided.

Serving process on the Chief Justice — at his home.

"[Daniel] Portnoy, owner of D.C. Legal Process, was serving papers in atheist Michael Newdow’s challenge of the words 'so help me God' in the oath that President-elect Barack Obama will take next week... [John] Roberts was surprised he was being served at home, Portnoy says. But the process server had to reach Roberts in his individual capacity..."

***

Now, I've broken my silence on the atheist's case about the oath. I don't really want to talk about these attention-seekers, even though I teach Religion & the Constitution, because I resent the way they cause many people to despise the Establishment Clause and to think atheists are litigious louts. I detest the idea that Obama's magic moment — turning into President — has been intruded upon by people doing PR for their crusade.

"I could hear little Muscovites recite a similar pledge to their hammer-and-sickle flag with equal solemnity."

The Rev. George M. Docherty -- who died on Thanksgiving, at the age of 97 -- sermonized about the Pledge of Allegiance:

[He] was summoned from his native Scotland in 1950 to become pastor of the historic church in downtown Washington, which Abraham Lincoln attended when he was president in the 1860s. Each year on the Sunday closest to Lincoln's birthday, Feb. 12, the church had a special service that was traditionally attended by the president.

On Feb. 7, 1954, with President Dwight D. Eisenhower sitting in Lincoln's pew, Rev. Docherty urged that the pledge to the flag be amended, saying, "To omit the words 'under God' in the Pledge of Allegiance is to omit the definitive factor in the American way of life."

He borrowed the phrase from the Gettysburg Address, in which Lincoln said, "this Nation, under God, shall have a new birth of freedom."

Rev. Docherty's inspiration for the sermon came from his son's schoolroom experience of reciting the Pledge of Allegiance, which was written in 1892 by Baptist minister Francis Bellamy. When Rev. Docherty realized that it had no reference to God, he later said, "I had found my sermon."

Without mentioning a deity, Rev. Docherty said, the pledge could just as easily apply to the communist Soviet Union: "I could hear little Muscovites recite a similar pledge to their hammer-and-sickle flag with equal solemnity."...

But in 1954, with Eisenhower in the congregation and the threat of communism in the air, Rev. Docherty's message immediately resounded on Capitol Hill. Bills were introduced in Congress that week, and Eisenhower signed the "under God" act into law within four months....

"An atheistic American is a contradiction in terms," he said in his sermon. "If you deny the Christian ethic, you fall short of the American ideal of life."

Those words may grate on some liberals' ears. Remember the oral argument in the Supreme Court case challenging the constitutionality of the words "under God" in the Pledge?

Michael A. Newdow stood before the justices of the Supreme Court on Wednesday, pointed to one of the courtroom's two American flags and declared: ''I am an atheist. I don't believe in God.''...

Earlier, Dr. Newdow responded to Justice Stephen G. Breyer's suggestion that ''under God'' had acquired such a broad meaning and ''civic context'' that ''it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge.''

''I don't think that I can include 'under God' to mean 'no God,' '' Dr. Newdow replied. ''I deny the existence of God.'' He added, ''Government needs to stay out of this business altogether.''...

[The 9th Circuit court] ruled last year that the addition of ''under God'' turned the pledge into a ''profession of religious belief'' and made it constitutionally unsuitable for daily recitation in the public schools. Congress added the phrase at the height of the cold war in an effort to distinguish the American system from ''Godless Communism.''

But Docherty was no arch conservative. From the first link:

During his 26 years as pastor, he became better known for his liberal social activism than for his quest to alter the Pledge of Allegiance. He promoted racial equality and led outreach efforts to feed and educate the city's hungry and poor. His church was often a staging point for civil rights and antiwar demonstrations, and the Rev. Martin Luther King Jr. preached from its pulpit. Rev. Docherty was with King on the Edmund Pettus Bridge during the "Bloody Sunday" civil rights march in Selma, Ala., in 1965.

Just in time for the election, Michael Newdow's "Under God" lawsuit is back, along with a challenge to "In God We Trust" on U.S. currency.

"I want to be treated equally," said Michael Newdow yesterday, as he argued 2 cases consecutively to a 9th Circuit panel. He's the atheist who challenged "under God" in the Pledge of Allegiance around the time of the last presidential election only to lose in the Supreme Court on a rather innovative interpretation of standing. (Somehow the state court's decision that the mother had custody and did not want the daughter involved in the lawsuit deprived him of a sufficient interest in what the state taught the daughter about her father's beliefs.) But, in time to inject the issue into the new presidential campaign, he found other parents and he's suing on their behalf. So the first of his 2 cases is the Pledge challenge revived. The second case challenges the strange but familiar practice of stamping the motto "In God We Trust" on U.S. coins.

Terence Cassidy, a lawyer for the school district, argued Tuesday that reciting the pledge is simply a "patriotic exercise" and a reminder of the traditions of the U.S.

"How is pledging allegiance to a nation under God not a religious act?" Judge Dorothy W. Nelson asked. Cassidy said the pledge has religious elements but is not a religious exercise.

Newdow said the pledge has "tons of religious significance. That's why everyone gets so angry when we talk about ... taking it out."

Nelson asked Cassidy whether removing the words "under God" would make the pledge any less patriotic.

"Not necessarily," he replied, arguing it provided a historical context, not a religious one.

In the money case, the Justice Department lawyer also pushed the God-as-patriotism notion.

Judge Stephen Reinhardt indicated support for Newdow's position.

The "In God We Trust" motto "affects Mr. Newdow every moment of his life," Reinhardt said. "The government has no compelling interest to put a slogan on a dollar bill."

I'm almost certain that if the 9th Circuit agrees with Newdow, the Supreme Court will accept the generic "God" that has become such a familiar presence in the Pledge and on the coins. There will be talk of history and the phrase "ceremonial deism" will be thrown about and the controversy will be packed away and reshelved for a generation.

What will be interesting however, will be to see the various presidential candidates needled over this issue, because this is exactly the kind of thing that people get all excited about (even though it has nothing really to do with running the country). It was troublesome in 2004. (I think the Supreme Court majority that disposed of the case by concocting a new standing doctrine did John Kerry a great favor 4 months before the election.) It's irritating to see this issue rearing up now.

Does it violate the law to teach that Jesus existed 2,000 years ago?

An Italian court will decide! Luigi Cascioli, who seems to be Italy's answer to Michael Newdow, brought the suit, he says, because he "wanted to deal the final blow against the Church, the bearer of obscurantism and regression." What Italian laws does he cite?

1. "Abuso di Credulita Popolare," that is, Abuse of Popular Belief.

2. "Sostituzione di Persona," that is, Impersonation.

Cascioli, who has singled out one particular priest whom he went to school with, has a book about atheism to sell. I think he should be charged with "Prodezza Diabolica di Pubblicità," that is, Evil Publicity Stunt.

Beware of the man with a cause, a guitar, and a belief in his own way with words.

Michael Newdow -- the man who opposed "Under God" in the Pledge of Allegiance -- what's he up to these days? Look out, he's got a guitar!

Newdow told the audience that he is overwhelmed by the abundance of words beginning with the letter C that are used to describe the United States' history.

"You have the Colonial era, the Continental Congresses, the Articles of Confederation, the Constitutional Convention," Newdow said. "It's really quite confusing. Just think about who discovered this place: Christopher Columbus, who comes to this new continent where communities congregate and coalesce into colonies such as Connecticut and the Carolinas.'

He continued to relay the events from colonization to the creation of the Constitution through alliteration.

Aside from being an accomplished orator, Newdow is also a singer-songwriter. He presented two of his songs during the lecture.

The first was a tune about the inaugural use of "So help me God," and the other was a melody about the Ten Commandments rock that was placed in the Alabama judicial building several years ago.

Newdow's next project is challenging the placement of "In God We Trust" upon American currency.

"I'm an atheist," he said. "I don't believe in God, so why does my money have to say that?"

I'm someone who can't stand media hounds, so why does my internet have to have a picture of him with a guitar on it?

Off to a slow start.

I'm doing a presentation to the faculty today about two Supreme Court cases (Newdow and Locke--the Pledge of Allegiance case and the case about denying a student a scholarship because he was majoring in theology.) The talk is at noon, and I'd like to pull my notes together in my office. But as I was sitting at the dining table this morning reading the NYT, it started to get quite dark. A storm was threatening, so I figured I'd wait it out. Well, it's been threatening for over an hour. Where the hell is it? Should I just dart out and get to my office? As noted two days ago, it only takes me ten minutes to get to my office. This waiting-out-the-storm thing is getting a little annoying. In the time I am taking to write this, I could be halfway to my office. And see: still no storm. A little rumbling in the distance. I'm probably timing this to insure that I will get soaked crossing the street to the Beloved Donor Law Building, but I think I've got to at along last take the big risk. I will report back on the extent of my drenching. If I don't, you may assume I've been struck by lightning.

UPDATE: Lightning bolts successfully dodged. I live to blog again, only slightly dampened.

Two men who didn't want to say two words.

So today Larry Hiibel enters Supreme Court history, aptly taking his place alongside Michael Newdow in the same volume of U.S. Reports: they are two men who cared so much about saying two words and litigated their concern to the hilt and lost. Newdow did not like the words "under God" in the Pledge of Allegiance and Hiibel did not want to say his own name to the police. In both cases, it's both a very small thing and a very big thing. It's worth thinking about how we feel about people like this. Are they cranks who make a mountain of a molehill or are they heroes who stand up for the principle of the thing? To answer that question is to learn something about yourself.

Why blog?

Ambivalent Imbroglio emailed me, asking why, as a lawprof, I've taken up blogging. He's a law student interested in what motivates lawprofs to blog. I suppose the fact that I'm blogging an answer to email (which he suggested) rather than responding by email is the first hint of the answer to the why blog question.

I started blogging back in January, shortly before the Spring 2004 semester began, and after a period of being extremely busy with a series of scholarly writing commitments. There I was, neatening up my office one leisurely day in January:

I was in the midst of cleaning out my office, having just covered the floor with books and papers. I paused the direct streaming "Fresh Air" I was listening to and checked my email, which included a colleague's description of her reasons for starting a blog. I had just emailed her about my admiration for her and my own timidity: "I'll have to think about getting up the nerve to do this sort of thing. It seems if you're going to do it, you need to become somewhat chatty and revealing, which is a strange thing to do to the entire world." Then it seemed altogether too lame not to go ahead and start the blog.

That's the second post ever to appear on the blog. The first post was explaining the name choice, which I soon abandoned, for reasons I posted about back in January. The colleague referred to in that post is Nina Camic, whose link appears in the blogroll over there in the sidebar. She had been influenced by Jeremy Freese (also in the blogroll), who is in the Sociology department, and who is blogging today about how sociology profs don't blog as much as lawprofs (or participate in email list discussions). My colleague across the hall, Gordon Smith, was also already blogging, but I never regarded his blogging as a reason why I should blog. He had a particular blog-niche, his specialty of entrepreneurship, and he was using his blog in a particular way that didn't make me think there is a place for me. I suppose I was waiting for years for someone to say to me "You should blog." Maybe it seemed that because others had done it first, it would be unoriginal of me to do it too.

I had been reading blogs quite a lot, especially since the 9/11 attacks. Living in Madison and reading the New York Times every day, I really felt hungry for different perspectives at this point. It meant a lot at that time to read Instapundit and the people he was linking to. I found myself exchanging email with my two sons (both college students at the time) with links and comments, which ended up seeming very much like blogging, but with an extremely limited audience.

Though I was behind the curve about blogging, I was ahead of the curve about email lists. My FedCourts email list was, I believe, the first of the lawprof discussion lists, and CivPro followed soon after that. I think that was 1995 that I started those lists, which I still maintain today. I also started a faculty discussion list in the Law School here around that time, back at a point when I had to keep explaining to people what it meant to activate your email and when one person in the Law School begged me not to start such a list on the theory that it unfairly discriminated against people who didn't want to use email. All of those email lists and others (especially Conlawprof, which Eugene Volokh maintains) have been an outlet for discussing law and law school topics, but they have also been unsatisfying for several reasons. The law school email list has never unleashed the kind of vibrant discussion I was hoping for. Many people balk at putting things into writing for one reason or another, and the threads would die off way too early. You can't do all the talking on those things, so I found myself stifling most of the things I might have said. I was disappointed, for example, that after the 2000 election everyone wasn't excited about talking about the details from day to day. I forwarded email from the Conlawprof and the FedCourts lists to the Wisconsin faculty list, but stopped when I heard the first too-much-email complaint. If you're the most talkative person on an email list, a lot of people on that list will see you as something akin to a spammer. And there was never much range to the topics discussed. You couldn't really chat about American Idol or the contents of your junk drawer. Email lists are also unsatisfying because everyone who receives what you write also receives email from people who jump on what you've written, and many times these people write intemperately, making personal attacks or getting weirdly outraged. Often they just misread what you've written. Every time you check your email, you feel a certain anxiety about what people are saying about you on the list, and responding can become a chore.

So when Nina gave me the slightest personal invitation into blogging, I accepted. I really had been wanting to do it for a long time. Once you start, you discover from day-to-day why you are blogging and what your subject matter is. You have a record of what you're interested in and can go back and learn a lot about yourself. I surveyed my interests after the after the first 10 days--I actually counted the first 100 names dropped, to get a picture of what had caught my eye. I haven't formally surveyed myself since then, but generally I'm interested in seeing what I'm interested in. So many thoughts run through your head every day as you observe the world around you and read or have conversations or remember things from long ago. The blog form is a wonderful thing, because it creates a habit of writing every day, allows you to write about anything, and transforms everyday passive experiences like web-reading, print-reading, and TV- and movie-watching into an active process of writing. Once you know people are reading you, you feel even more activated to keep writing. You can see how many people are reading you, who is linking to you, what words people have Googled before coming to your blog--that's all quite amusing and energizing.

As to the law part of all of this: I like to have a place to opine immediately about various things about law and law school. I especially like being in a position to write about new Supreme Court cases within an hour or so after they are issued. When the Newdow case came out this week, I found that really exciting, and wrote the equivalent of 7 pages on the case that day (even though it was otherwise a busy teaching day, the first day of my summer Conlaw class, and I had several hours of exam-grading that had to be done). If it weren't for the blog, I would not have read the case so intensely, so quickly. I would have scanned it and perhaps planned to write about it in the next month or so, but the blog created a great momentum and made it quite satisfying to try to figure things out on the first day and to put out some written analysis that people could link to.

I also like having the opportunity to convey some of the feeling of what it is like to be at the University of Wisconsin Law School, which is a special place, and in Madison, Wisconsin, which is also pretty special. Maybe I can influence some law school applicants to consider coming here rather than somewhere else or just make some people who want to come here anyway have something of a feeling (a good one, I hope) for the place that they will be going. Maybe some alumni and other former residents will enjoy checking in here to reminisce about good old Madison. There are also some issues about teaching law that I like to be able to air my opinions about, and the blog is a great place to do it. For example, very soon I'm going to blog about the downloadable class outlines that are available on the Law School's website.

Finally, after the first 2 months of blogging I figured out how to post images here, and that led me to buy a digital camera. The process of walking around in Madison and elsewhere with an eye out for things photographable is extremely rewarding in itself. Being able to put the pictures where a lot of people can see them has been probably the best part of blogging for me. I went to art school a long time ago, and I know what it is like to produce a lot of images that are not seen. So the ease of reaching out with the pictures through the blog is a miraculous pleasure.

Let me just end this long post by saying, the blog is a great format because of its day-to-day entry structure, the ease of reaching out to the whole world, and the power of the link. But it's just a format, the way a magazine or a slot of television time is a format. You can put anything you want into it. I know that some lawprof bloggers are trying to be very strictly focused on legal topics and others blend law with some other things, especially political news and analysis. I haven't set out in advance to have any particular set of things on this blog. I get up in the morning and know I will blog about something even though I have no idea what it is yet. But I'm interested in finding out what it is and gratified to see that other people are too.

Federalism and family law in the Newdow Court's standing decision.

It's late and it's been a long day, the first day of summer Conlaw and the deadline –met!--for Spring semester grades, but let me get my final Newdow post in. I can see I got a nice Instapundit link for my multiple Newdow posts, so I want to take the opportunity to talk about Justice Stevens' approach to standing, which decided the case for the majority. I'm particularly interested in this aspect of the decision, not just because I'm a Federal Jurisdiction lawprof, but because I've often written about the interplay between state and federal law and the effect of the state court's authority over state law on the jurisdiction of the federal courts. (Bush v. Gore presented questions of this kind, by the way.)

In Newdow, the power of the federal court to hear Newdow's case depended on Newdow's standing as a plaintiff. Federal standing has two aspects, constitutional and subconstitutional (usually termed "prudential"). To meet the constitutional requirement of standing (which is derived from the "cases" and "controversies" language in Article III of the Constitution), the plaintiff must have a "concrete and particularized" or "distinct and palpable" injury. No one on the Court seriously questioned that Newdow had such an injury. It's not surprising that the Stevens opinion doesn't take this aspect of standing seriously, because the Justices who joined this opinion (other than Kennedy) usually aren't very strict about standing requirements, and the "prudential" standing problem they found accomplished the task of obliterating the case. It is surprising that Chief Justice Rehnquist, who usually is stricter about standing requirements, does not see any problem here.

What injury did Newdow suffer as a parent of a child who participates in the Pledge? Rehnquist refers to Newdow's "right to influence his daughter’s religious upbringing and to expose her to his views" but only in the context of criticizing Stevens' "novel" prudential limitation on standing. He does not address why this is a substantial enough injury to meet the constitutional requirements of standing. How does the Pledge cause a concrete injury to his interest in exposing his daughter to his views? He is still able to express his views. He is injured by the fact that she hears other views? It seems to me that the concurring Justices ought to have taken this problem seriously before going on to address the question whether the Establishment Clause was violated.

Justice Stevens' relies on a subconstitutional limitation on standing that is very much tied to the traditional role of the states making the law that governs family relations. Though the Justices joining the Stevens opinion (other than Justice Kennedy) are not usually the ones we find getting excited about enforcing federalism, Stevens has found a new use for federalism. That is especially surprising because it comes from the Justices who are usually the most interested in preserving the role of the federal courts in the enforcement of federal constitutional rights.

The idea Justice Stevens develops is that the state courts, applying state law, have already defined the rights of the child's father and mother and determined that the mother has the final say in decisions about the child's education and welfare. The mother thought the litigation over the Pledge would hurt the child, and the state court, recognizing her state law legal rights, enjoined the father from making the child a party to the lawsuit. The father was still free to sue on his own, without the child as a party, but his theory of standing to litigate still rested on his status as a father. (Constitutional standing doctrine would not allow him to sue based only on his opposition to the Pledge as a citizen.)

So what exactly was the prudential standing limitation Justice Stevens found? It seems to be that the federal courts ought to decline to act at the behest of someone who sues relying on his status as a parent if the child would be harmed by the lawsuit. Significantly, the federal court will not determine for itself whether the lawsuit is harmful to the child, but will abide by the state court's use of state law to determine which parent has the final authority to say what is harmful to the child. So, even though Newdow as a parent asserts that he is doing good for his child, California has given the mother the legal authority to decide what is good for the child, and the prudent federal court, apparently out of respect for the state, ought to abide by the decision of the mother.

Do I think the Stevens group would have said that if they weren't looking for a way both to make Newdow lose and to avoid weakening Establishment Clause doctrine? Of course not!

What the concurring Justices in Newdow said about the Establishment Clause.

As noted below, the main opinion in Newdow does not address the Establishment Clause question. The three concurring opinions do, however, and all find the Pledge, with the "under God" language, constitutional. The three concurrers are Chief Justice Rehnquist and Justices O'Connor and Thomas. (Justice Scalia did not participate.) All three write up their own views of the Establishment Clause, and O'Connor also joins the Chief's opinion with respect to the Establishment Clause.

The Chief's opinion largely deals with the standing issue (which I'll discuss in a separate post), and his Establishment Clause material is largely the familiar litany of references to God in various speeches ("With malice toward none, with charity for all, with firmness in the right as God gives us to see the right...") and songs ("Then conquer we must, when our cause it is just/And this be our motto: 'In God is our trust.'"). Then the question is whether to think about the problem in terms of "coercing" participation in a religious exercise or "endorsing" religion. The Chief and Justice Thomas only consider whether there is a coercion problem, while Justice O'Connor also considers whether there is endorsement.

Justice O'Connor however finds no endorsement of religion: since the Pledge is not a prayer or an act of worship, since it does not single out a particular religion, and since it is such a long and widely practiced exercise, a reasonable person—in her view—would not conclude that government is endorsing religion.

All three concurrers apply the "coercion" standard. The Chief Justice and Justice O'Connor simply do not see a "religious exercise," so it does not matter to them that having to stand by during the exercise was called coercion in Lee v. Weisman, where students attending a graduation ceremony were seen as "coerced" merely by having to listen to a prayer. O'Connor explained that the mild coercion of being an onlooker doesn't violate the Establishment Clause when the exercise was merely one of "ceremonial deism," which is "simply not religious." Justice Thomas (like the 9th Circuit) thought that the standard articulated in Lee would make "under God" in the Pledge unconstitutional, but he would overrule Lee, so his conclusion was still that the Pledge did not violate the Establishment Clause.

Thomas's opinion is also notable in that it rejects the application of the Establishment Clause to the states at all. In his view, unlike the Free Exercise of Religion clause, and many of the other rights in the original Bill of Rights, the Establishment Clause should not be seen as incorporated into the Fourteenth Amendment: "the Establishment Clause is best understood as a federalism provision," barring the creation of a national church and barring federal interference with any establishments of religion the states may want to make. "As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected–state practices that pertain to 'an establishment of religion.'" He invites the rest of the Court to reexamine the incorporation issue. It's virtually impossible to imagine the Court going back to the question of Establishment Clause incorporation, though there were strong arguments to this effect that the Court ought to have addressed back when it initially found incorporation.

O'Connor's opinion is also interesting for its rejection of the "de minimis" argument: "There are no de minimis violations of the Constitution--no constitutional harms so slight that the courts are obliged to ignore them." As indicated above, she also accepts the term "ceremonial deism" (which "encompasses such things as the national motto ('In God We Trust'), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ('God save the United States and this honorable Court')"). It is important to distinguish the de minimis argument from the acceptance of ceremonial deism: the point is not that there are some constitutional violations that are too small to be worth the fuss of correcting, it is that some kinds of general, solemnizing references to the divine are simply not violations at all.

Using standing to avoid the real issue.

Justice Stevens' opinion in Newdow contains a very interesting issue about the use of state law--family law--to determine the scope of standing to sue in federal court. Why should the states be able to determine the power of the federal courts over this case? It should be noted that Justice Stevens normally takes a broader view of standing than the rest of the Court, so there will be much speculation, as there usually is with standing cases, that standing is invoked for the purpose of avoiding saying something about the merits. Here, one will tend to say that the liberal Justices did not want to unleash the furor that would be caused by ordering "under God" out of the Pledge but also did not want to weaken the Establishment Clause, so standing became an attractive escape.

Chief Justice Rehnquist writes a concurring opinion disagreeing with the Stevens opinion about standing and also reaches the Establishment Clause issue. Justices O'Connor and Thomas have also written concurring opinions. So I will have more on all of this later, but right now I've got to take the final steps in getting my Conlaw grades done, as they are due today. If only I had known Newdow would come out this morning I would have had the stamina to finish yesterday! But I promise to have some juicy conlaw things to say later. That's assuming you can find the jurisdictional side of things juicy. I'll try to show why it is. And I'll say some things about the Establishment Clause as well. Later.

Flag fizzle: Newdow loses the Pledge case.

The Court has unanimously decided against the Michael Newdow, the atheist who got the 9th Circuit to hold that the words "under God" in the Pledge of Allegiance violate the Establishment Clause. But the decision of the Supreme Court today says nothing about the Establishment Clause, only that Newdow lacks standing. Under state law, he lacks standing to sue on her behalf, because his daughter's mother has been given custody. He can only assert his own rights, but he had no rights to assert. No one was barring him from saying whatever he wanted to his daughter. Rather he wanted to keep her from hearing things he disagreed with. That might violate her rights, but he was in no position--because of California law--to speak for her.

So the Establishment Clause question remains to be decided another day, which may never come.

Constitutional thrills. For me, apparently, daylight savings means waking up in the middle of the night and seeing that the time is close enough to a reasonable hour to go ahead and get up. The NYT is here, I can check out the overnight activity on my blog. Hmm... someone came here after doing a Yahoo search for "this kind of very comprehensive supreme being, Seeger-type thing," a phrase Justice Breyer used to refer to God in the Newdow oral argument. This entry of mine is one of only three results for that. I'm surprised more people haven't commented on Breyer's striking locution.

One of the search results is just a reprint of Leon Wieseltier's article in The New Republic, "What America Can Learn From Its Atheists."

Citing United States v. Seeger from 1965, though he might have illustrated his speculation more vividly with the historical precedent of the Cult of the Supreme Being in revolutionary Paris, Breyer proposed that such a faith "in any ordinary person's life fills the same place as belief in God fills in the life of an orthodox religionist," and so "it's reaching out to be inclusive"--so inclusive, in fact, that it may satisfy a non-believer such as Newdow. Breyer suggested that the God in "under God" is "this kind of very comprehensive supreme being, Seeger-type thing." And he posed an extraordinary question to Newdow: "So do you think that God is so generic in this context that it could be that inclusive, and if it is, then does your objection disappear?"

Oh, yes, life would be so much more vivid if Supreme Court Justice's would stop being so stodgy as to prefer references to their own old cases! Please cite more foreign sources, Justices, because that is way more fun ... and it gets a rise out of Scalia.

Anyway, the only thing extraordinary about Breyer's statement is the idiosyncratic syntax. The idea itself is straight out of ... oh, how tedious ... some old Supreme Court cases. But Wieseltier is jazzed up by the way Newdow did not back down, even though, obviously, since he's trying to win his case, he wouldn't. Breyer was just asking for a response to the utterly predictable argument that generic ceremonial deism doesn't violate the Establishment Clause.

Newdow's objection did not disappear, because it is one of the admirable features of atheism to take God seriously. Newdow's reply was unforgettable: "I don't think that I can include 'under God' to mean 'no God,' which is exactly what I think. I deny the existence of God." The sound of those words in that room gave me what I can only call a constitutional thrill. This is freedom.

If only more ideologues could get the opportunity to do Supreme Court arguments, more constitutional thrills could be had by all. According to Wieseltier:

Breyer was advocating the Lockean variety of toleration, according to which it would be based on a convergence of conviction, a consensus about the truth, among the overwhelming majority of the members of a society. The problem with such an arrangement is that the convergence is never complete and the consensus is never perfect. Locke himself instructed that "those are not at all to be tolerated who deny the Being of a God." The universal absolute is never quite universal. And there is another problem. It is that nobody worships a "very comprehensive supreme being, Seeger-type thing." Such a level of generality, a "generic" God, is religiously senseless.

Except that Breyer wasn't invoking Locke's idea about freeing up the discourse so the individual can search for the true answer. Breyer was talking about an invocation of God that is too bland and generic to warrant judicial intervention. What Wiesentier is calling a "problem" is the central point Breyer's argument makes: no one's version of God is being preferred. And it isn't fair to Locke either, again quite obviously. Is the person who makes the first big step toward freedom and away from repression to be raked over the coals because his step was not big enough? Should we impute a blindspot that existed in 1689 to Locke's intellectual descendants of today? That's just sophistry. The ceremonial deism idea--even though it can be criticized as encouraging the ennervation of serious religion--is valuable because it allows courts to avoid excessive intervention in small matters. That ideologues can pump up small things and make them seem all-important is very old news.

"[T]his kind of very comprehensive supreme being, Seeger-type thing." That's a quote from Justice Breyer from the oral argument yesterday, his suggestion for how to think of the "God" referred to in the Pledge of Allegiance. I enjoy Breyeresque locutions. Here the whole context:

I mean, it's a pretty broad use of religion sometimes. I -- does it make you feel any better, and I think the answer's going to be no, but there is a case called Seeger, which referred to the Constitution -- to the statute that used the word, supreme being, and it said that those words, supreme being, included a set of beliefs, sincere beliefs, which in any ordinary person's life fills the same place as a belief in God fills in the life of an orthodox religionist. So it's reaching out to be inclusive, maybe to include you, I mean, to -- because many people who are not religious nonetheless have a set of beliefs which occupy the same place that religious beliefs occupy in the mind and woman of a religious -- of a religious mind in men and women.

So do you think God is so generic in this context that it could be that inclusive? ...

And if it is, then does your objection disappear? ...

But what I'm thinking there is that perhaps when you get that broad in your idea of what is religious, so it can encompass a set of religious-type beliefs in the minds of people who are not traditionally religious, when you are that broad and in a civic context, it really doesn't violate the Establishment Clause because it's meant to include virtually everybody, and the few whom it doesn't include don't have to take the pledge.

[NEWDOW: You're referring to the two words, under God?]

Yeah, under God is this kind of very comprehensive supreme being, Seeger-type thing.

There's something disarmingly roundabout in Breyer's form of expression. It actually reminds me of Ellen DeGeneres. I think it's an intentional backing off from strikingly clear statements that he is surely capable of making. The idea in the end is clear and comprehensible nonetheless, and there is something in the adopted inarticulateness that seems to invite the listener in or to avoid being too overwhelmingly brilliant. Or maybe it's just idiosyncratic or a sort of humor. Anyway, I find it charming.

The Newdow oral argument. Early reports on the oral argument are emerging. The AP report makes it hard to tell how the standing issue will come out:

Rehnquist said that the issues raised in the case "certainly have nothing to do with domestic relations." And, Justice David H. Souter said that Newdow could argue that his interest in his child "is enough to give him personal standing."

On the establishment clause issue, though, it seems to me that the school district has the votes to prevail. Reuters lists these comments:

"She [the daughter] does have a right not to participate," Justice Sandra Day O'Connor said.

Rehnquist said the pledge "doesn't sound anything like a prayer."

And Justice David Souter asked whether the affirmation of God in the midst of a civic exercise "is so tepid, so diluted, so far from a compulsory prayer that it should in effect be beneath the constitutional radar."

The Souter vote is especially important. If Newdow is going to accumulate 5 votes, based on past voting patterns, I am certain that one of the votes would need to be Souter's. I can see it's in the form of a question, but I would surmise that Souter likes the de minimis argument. If so, the question becomes: does Newdow lose on the merits or lose because he lacks standing?

A dismissal on the standing ground would leave the constitutional issue open, and local decisionmakers might on their own eliminate the phrase (or the whole Pledge) in an effort to meet what they find to be a constitutional requirement. If standing is met, however, and Newdow loses on the merits, the announcement will have been made that the phrase is constitutional, which will give those who want to use it confidence and clout.

MORE: More oral argument text, specifically on the standing issue, from Linda Greenhouse's article in tomorrow's Times:

"I as her father have a right to know that when she goes into the public schools she's not going to be told every morning to stand up, put her hand over her heart, and say your father is wrong, which is what she's told every morning ... Government is doing this to my child. They're putting her in a milieu where she says, `hey, the government is saying that there is a God and my dad says no,' and that's an injury to me."

The requirement of standing is that a litigant have a "concrete and particularized injury"--as opposed to a "hypothetical" or "abstract" injury--that he is seeking to redress through the lawsuit. The injury asserted in that argument is the mere fact of government having different values from the child's father. But schools are constantly teaching things that are at odds with what parents espouse at home. And government is constantly saying things that many people disagree with. If this is a good enough injury to give standing to sue, that might mean one could sue whenever government acts in a way that reflects a belief that is different from what a parent believes. So what if government says one thing and you think another? You're saying you're injured because your child's respect for you is diminished because you don't agree with the government?

Safire's Pledge solution. William Safire discusses the Pledge of Allegiance case, which will be argued in the Supreme Court today, and proposes a solution. Although he thinks "this time-wasting pest Newdow ... is ... right," in that adding the words "under God" back in 1954 was wrong, he thinks taking the words out at this point, "offending the religious majority, would be a ... mistake now." So what's the solution?

First, he rejects the idea of "us[ing] the issue of standing to punt, thereby letting this divisive ruckus fester." That baldly assumes the Court uses the constitutional requirement that a litigant have standing to sue in federal court as a way to get rid of pesky cases. There's reason to suspect the Court doesn't apply the standing doctrine in as neutrally principled a fashion as it purports to do, but standing presents a serious constitutional question about the courts' own power. I haven't studied the briefs, but from what I've read about Newdow's case, I don't think he does have standing. More on that later.

The solution Safire does offer is "for the court to require teachers to inform students they have the added right to remain silent for a couple of seconds while others choose to say 'under God.'" Nice try, but there's a huge problem with that: it directs the teachers to lead the class, in a kind of religious exercise. The teacher would be essentially telling the students to examine their own beliefs with respect to the divine and assess whether they have the set of beliefs that makes it appropriate to say those words and to outwardly manifest those beliefs by either saying or not saying the words. Now, the recitation of the Pledge becomes even more of a display of belief in the classroom, as opposed to the historical or de minimis incantation, and to the recitation has been added an exercise of self-examination about religious beliefs, directed by the class authority figure.