I'm enjoying keeping up on my predictions for 2004 Here's another one that's come true, well, mostly. Responding to William Safire's prediction that the Supreme Court will deadlock (4-4, with Scalia recusing himself) on the constitutionality of using the phrase "under God" in the Pledge of Allegiance, I wrote:
The Supreme Court wouldn't touch the Pledge of Allegiance with a barge pole. I'm betting it will issue a ridiculous, self-contradictory and tortured opinion that will reverse the Ninth Circuit's decision while leaving everything else undecided. I anticipate lots of hilarious to-ing and fro-ing as the solons who run America's school districts try to write "inclusive" and "neutral" pledges that will express the shimmering, insubstantial essence of the Supreme Court's opinion to the satisfaction of the vengeful imps known as District Court judges.Well, the Supreme Court recently held that it wasn't going to touch the Pledge with a barge pole. You can read the full text of the Court's opinion (in PDF format) here. The Court's opinion proves me both right and wrong. I'll elaborate.
Wrong. When I wrote that the Court will issue a "ridiculous, self-contradictory and tortured opinion that will reverse the Ninth Circuit's decision while leaving everything else undecided," I had in mind something on the order of Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which Justice O'Connor swapped her judicial robe and gavel for a mumu and incense before gibbering, "At the heart of [the Fourteenth Amendment's idea of] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." She -- and the two other judges who smelled the bong smoke -- proceeded to junk the trimester framework which was the centerpiece of Roe on the following grounds: (a) keeping the framework would allow advances in medical science to erode Roe beyond recognition; (b) doing so would allow the states to restrict the number of dead babies produced by Planned Parenthood abortion mills; and (c) since the Court has the power to say that something which was once essential is no longer essential, it should lift itself out of the dilemma by its own bootstraps.
Rather than repeat history as farce, the Supreme Court used the obscurities of federal "standing" law to duck the case. Basically, "standing" means that parties to a lawsuit have to have a sufficiently-recognizable stake in the outcome of the litigation before courts will decide their claims. The Pledge plaintiff, Michael Newdow, was suing because his poor daughter was subjected to a recitation of "under God" by California schoolteachers, thus interfering with his right to present her with a bunch of atheist twaddle, encouraging her (for example) to believe in an unfettered and inalienable right to define her own concept of existence, of meaning, of the universe, and of the mystery of human life etc. -- perhaps even, someday, joining Justice O'Connor (and maybe Justice Souter, we're not sure about him yet) in the Mumu-ed Sisterhood of Judicial Goddesses. Unfortunately for Mr. Newdow a rare outbreak of judicial sanity in California left him without legal custody of his daughter. So the Court pounced: (1) If Newdow doesn't have custody, he doesn't have parental rights over his daughter. (2) If Newdow doesn't have parental rights over his daughter, the recitation of the pledge in her presence can't interfere with his rights. (3) If the recitation of the pledge can't interfere with Newdow's (non-existent) parental rights, he's got no business using the courts to get his fifteeen-minutes-of-fame. Next!
Right. The net effect of the Court's decision is to vacate the decisions of the District Court and Ninth Circuit Court of Appeals on federal establishment-clause grounds. But only as to Newdow and his daughter. Whether using the phrase "under God" is constitutionally permissible is left undecided, save that everybody's shown their cards at this point. Californians know that federal district judges will invalidate the pledge's use of the phrase on first-amendment grounds whenever the case gets brought by somebody who has custody. They also know that the Ninth Circuit Court of Appeals will uphold that decision. Lastly, they know that when they get to the Supreme Court, five justices are so uncomfortable with the constitutionality of "under God" that they made themselves into judicial pretzels (read Justice Rhenquist's skewering of the "standing" opinion) to avoid saying one way or the other just right now. Not to mention Justice Sandra "Define Your Own Mystery of Life" O'Connor's adherence to the ephemeral "endorsement test" which can provide endless grounds for nitpicking pledge-recitations to death. (Does the teacher stand so close to the American flag as to suggest an "endorsement" of "under God" as an attribute of citizenship? Did Colonel Mustard define the mystery of life in the library with a candlestick?) Well, that question's going to be answered by someone who's stupid enough to write this:
Even if taken literally, the phrase ["under God"] is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority.So if I say, "Thy kingdom come, thy will be done," I'm only identifying myself as a person subject to divine authority, which cannot be seen as a serious invocation of God or as an expression of my individual submission to Him. Pity that Jesus didn't have Sandra O'Connor clerking for him. He would have been more clear. Seriously, though, how infirm is the mind which can produce such nonsense?Elk Grove Unified School Dist. v. Newdow, No. 02-1624 (O'Connor, J., burbling).
Infirm enough to be swayed, the next time the issue metastasizes to supreme-court proportions, by evidence in the record that pictures of firemen, police officers, and soldiers were displayed simultaneously, thus suggesting to a neutral observer a symbolic endorsement of their offices as representations of divine authority. I could make a poster: "This is your brain. // This is your brain on strict scrutiny."
So, that's six more-than-possible "no God" votes the next time around, depending on what Justice O'Connor drank with lunch, and that's not even starting with the independent and adequate state grounds argument which could invalidate "under God" solely as a matter of the California