Michael Newdow has just become the Supreme Court's Rudy Ruettiger. For those of you who don't remember the story (or didn't see the movie starring Samwise Gamgee), Rudy's the kid who always dreamed of playing football for Notre Dame, then finally got his chance for one brief play to great applause but to no real consequence.
Likewise, the crowds are literally cheering for Newdow, whose success in challenging the "under God" phrase in the Pledge of Allegiance is hitherto a major feat in itself, did a masterful job arguing his case at the court yesterday. Especially good, considering that he's an emergency room doctor who has argued few cases.
"Newdow showed he had mastered the case and his emotions, making a forceful presentation that could teach veterans some new argument tactics," law journalism biggie Tony Mauro wrote in Legal Times. In an article for the First Amendment Center, Mauro called it "a stellar performance … parrying justices' questions and sticking with his strategies with more skill than many veteran advocates."
"No one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance," wrote The New York Times' Linda Greenhouse. The Washington Post's Charles Lane gushed about how Newdow "would not be ambushed."
"Five stars," was the review from Slate's Dahlia Lithwick. "He may still lose this appeal, but he absolutely won the day."
All of a sudden, Weblog feels like this is Film Forum. We are talking about legal arguments at the Supreme Court, aren't we? Maybe, but that didn't stop the chamber from erupting in applause—" a sound rarely, if ever, heard at oral argument in Rehnquist's tightly run courtroom," notes the Post—when Newdow countered a point by the chief justice.
Even Newdow's daughter's mother, an evangelical Christian who opposes Newdow's effort and who has primary custody of their child, said, "Michael did very well. … He showed as much passion in front of the Supreme Court today as he shows in family court."
But this may be where the Newdow parade ends. The Supreme Court justices—the six of them remaining, since Antonin Scalia recused himself—may have enjoyed bantering with the newbie, but a near-unanimous consensus among observers is that he's going to lose the case.
"Justices across the ideological spectrum appeared to be searching for reasons he should lose, either on jurisdictional grounds or on the merits," wrote the Times' Greenhouse. The Los Angeles Times agrees:" It sounded as though a solid majority of the justices will try to agree on a ruling that either throws out Newdow's claim or upholds the pledge as a patriotic exercise, not a religious affirmation," wrote David G. Savage. The same from Mauro. "Most justices," he wrote, "seemed eager either to avoid the issue or to join the lopsided majority of Americans who tell pollsters the pledge should remain as it is."
The Post was more circumspect: "Although only one member of the court, Justice John Paul Stevens, seemed sympathetic to Newdow's position, the others appeared anything but certain about how to rule against him, if indeed they want to."
If the Supreme Court is going to say—or, rather, reiterate its earlier statements—that the "under God" phrase doesn't constitute a government establishment of religion, the justices are likely to note the difference between the Pledge of Allegiance and prayer.
When Justice Sandra Day O'Connor noted that the Supreme Court has already ruled that children cannot not be forced to recite the Pledge, Newdow referenced Lee v. Weisman, a 1992 decision banning prayers at public school graduation ceremonies. That decision said that even though students were not obligated to pray at the ceremony in question, they were coerced to do so by "subtle and indirect public and peer pressure."
"That was a prayer," O'Connor interrupted.
"Well, I'm not sure this isn't a prayer," Newdow said.
"It certainly doesn't sound like anything like a prayer," Rehnquist said a moment later.
"This Court has stated it's an affirmation of belief, an attitude of mind when we pledge, and I think you have to take all the words," Newdow said. "It says under God. That's as purely religious as you can get and I think it would be an amazing child to suddenly come up with this knowledge of the history of our society and what our nation was founded on."
Justice John Paul Stevens may agree with Newdow. In a question to U.S. Solicitor General Theodore Olson, he made a little slip: "Do you think that the pledge has the same meaning today as when it was enacted—when the words, under God, were inserted into the prayer, into the pledge?"
But the justices may not decide to weigh in on "under God" at all. While there's certainly not-so-subtle and direct public and peer pressure for them to do so, they can punt.
In fact, much of yesterday's questions directed at Olson, and all of the questioning of Terrence J. Cassidy, who represents Elk Grove Unified School District, was about whether Newdow even has standing to bring the case. It's Newdow's child's mother who has primary legal custody, and she wasn't consulted when Newdow filed his suit.
While Newdow repeatedly made comments about his daughter's rights, he insisted on the issues of legal standing that he's an injured party, too. "I'm not bringing this on her behalf, I'm bringing this on my behalf," he said. "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 be asked to stand up, put her hand over her heart, and say your father is wrong. … That is an actual, concrete, discrete, particularized, individualized harm to me, which gives me standing."
Justice Ruth Bader Gisburg appeared particularly on the ball on this point. She started by making the point, as other justices did, that Newdow's daughter doesn't have to say "under God" if she doesn't want to. "That's not an issue in this case," she said.
"The issue is whether or not government can put that idea in her mind and interfere with my right," Newdow replied. "I have a absolute right to raise my child as whatever I see."
"No, you don't, you don't," Ginsburg countered. "There is another custodian of this child who makes the final decision who doesn't agree with you."
The justices seem to have ample justification to rule against Newdow's standing, which would mean they wouldn't have to take up the "under God" issue. But that doesn't mean the standing issue is unimportant, as Slate's Lithwick notes:
Justice Anthony Kennedy seems to have a problem writing Newdow completely out of the legal picture, worrying that the state is "tipping the balance" against this father. Justice David Souter wonders whether, "even if the mother has the right to cast the final decision," Newdow "nonetheless has an interest as a father." Cassidy says the school district must rely on only a "single decision-maker" to function. The implications of spontaneously inventing standing for Newdow aren't addressed much today: Is the court poised to overturn the whole custodial apple cart to create some new federal constitutional custody rule?
With Scalia's recusal, by the way, there's another way for the court to punt. It could deadlock in a 4-4 vote, which would leave the 2002 9th U.S. Circuit Court of Appeals ruling in place but wouldn't apply it nationally. Then only schools in nine western states would be prohibited from leading students in a Pledge of Allegiance containing "under God." That scenario is very unlikely, however, and is even less likely to happen on purpose.
If the justices do rule against Newdow, their decision may focus on the difference between prayer to God and references about God. That's essentially the case made by Olson:
[The Pledge] is not like a prayer, it is not a supplication, it's not an invocation. … The Establishment Clause does not prohibit civic and ceremonial acknowledgments of the indisputable historical fact of the religious heritage that caused the framers of our Constitution and the signers of the Declaration of Independence to say that they had the right to revolt and start a new country, because although the king was infallible, they believe that God gave them the right to declare their independence when the king has not been living up to the unalienable principles given to them by God.
But Justice David Souter seemed to take a different view. "I will assume that if you read the pledge carefully, the reference to under God means something more than a mere description of how somebody else once thought," Souter said. "We're pledging allegiance to the flag and to the republic. The republic is then described as being under God, and I think a fair reading of that would be, I think, that's the way the republic ought to be conceived—as under God."
However, Souter continued, asking Newdow, "What do you make of the argument that in actual practice, the affirmation in the midst of this civic exercise as a religious affirmation is so tepid, so diluted, then so far … from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar. It's … ceremonial deism. What do you make of that argument, even assuming that, as I do, that there is some affirmation involved when the child says this as a technical matter?"
"If that's true," Newdow said, "Then why did 99 senators stop what they were doing and go out front and say the pledge [after the 9th U.S. Circuit Court of Appeals decision]? Why did President Bush interrupt a press conference to talk about its importance? The reason this has become a big deal is because people think it is explicitly religious, and that's the problem with it."
Indeed. Would a Supreme Court decision that said "under God" is okay simply because it's meaningless truly be a victory?
The New York Times has much of the transcript of the oral arguments, but the full version will be available in a few weeks on the Supreme Court's official website. Oyez may have audio at some point. If you're really interested in how sausage is made, you can watch Newdow's dry run at a moot court at the University of California at Berkeley.
Meanwhile, here's several opinion and analysis pieces:
- Citizenship 'under God' | If we declare ourselves free from any moral law or governor higher than the imperial self, we become gods. I cannot imagine a more frightening prospect. (Charles Colson, Breakpoint)
- Court shouldn't dodge issue | Sooner or later, in this case or another, the issues raised by the "under God" phrase probably will have to be decided by the court (Editorial, Milwaukee Journal-Sentinel)
- The Pledge in court | The court should focus narrowly on the nonreligious, patriotic context in which the words "under God" appear (Editorial, The Washington Post)
- The pledge's day in court | "The Pledge of Allegiance" doesn't need doctoring, but an atheist's challenge affirms its meaning (Editorial, The Oregonian)
- Newdow & us | Much more than one case and two words (Gilbert T. Sewall, National Review Online)
- U.S. needs less pledging, more justice | If only we spent the same amount of energy living up to God's words as we did reciting them, we would be worthy of the principles we hold so dear (Desiree Cooper, Detroit Free Press)
- The court hears oral argument in the "under God" Pledge of Allegiance case | Why the court should reject this Pledge, and why the Department of Justice is wrong to support it (Marci Hamilton, FindLaw.com)
- One nation 'under God' | That phrase may make some children feel like outsiders (Larry Atkins, The Dallas Morning News)
- Judiciary has invited reform | Pledge case raises the issue of what can be done to remind judges that they are not wizards empowered to write on a clean slate while ignoring the plain text of the Constitution or long-standing social practice and tradition (Al Knight, The Denver Post)
- Judging Newdow | A trial run for the Pledge protester (Vincent Phillip Muñoz, National Review Online)
- One pledge, hold the 'under God' | The only intellectually honest course is to forbid the public-school recital of the religious version of the oath (David Greenberg, The Christian Science Monitor)
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