He's no kook
Michael Newdow, the atheist who's challenging the phrase "under God" in the Pledge of Allegiance, represented himself before the U.S. Supreme Court this week. And from all accounts, he did a great job. If you're registered at The New York Times, you can read parts of the transcript of the oral argument for yourself here.
Newdow, a nonpracticing lawyer, is currently employed as an emergency room doctor. At one point he had the audience in the courtroom applauding him -- something that doesn't happen very often in the Supreme Court -- and he even got in a rehearsed closing line just before his time expired -- not easy to do.
The case has several interesting features besides the main issue. With Justice Antonin "Ducky" Scalia having recused himself, the Court could come down in a 4-4 tie, which would leave the Ninth Circuit's ban on the phrase intact. Another possibility is that the Court could rule that Newdow has no standing, because the real injury is to his daughter rather than to him, and she lives with her mother now. On the other hand, Newdow made a pretty good case that he's injured enough when the folks in the public school implicitly tell his daughter that her dad's religious beliefs are wrong.
| Posted at 4:39 AM | Permalink |
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Comments (8)
I agree Newdow did a phenomenal job; he appeared to be thinking one step ahead of the judges. And his response to Renquist, which produced spontaneous applause, implies Newdow knew exactly where Renquist was going. Almost like he set Renquist up...very impressive.
A couple of thoughts about the possible ruling. While I believe Newdow has the stronger case, there is no way the Supremes are going to vote in his favor. They will either deny him standing, which will only postpone this debate for another couple of years...
Or they will argue that the phrase "under God" is repeated so often that it has lost all Religious connotation. A weak argument, but the only route the Supremes can take without overruling or seriously distinguishing former "Establishmen Clause" cases.
I'm excited to see how this plays out.
Posted by Catalyst | March 26, 2004 6:20 AM
The phrase "Under God" was added to the pledge during, I believe, the Eisenhower administration. The reason for inserting the phrase was political, not religious. The cold war was heating up and the phrase was intended to emphasize America's differences with the "atheist" Communists. Somehow the argument about retaining the phrase has now become entwined with the Declaration of Independence, the Constitution, the Bill or Rights and all kinds of things the founders supposedly intended.
I'm not sure the God I learned about as a child in Sunday School at All Saints Episcopal would have appreciated His name being used to differentiate people based on their political beliefs.
Posted by Dave Lister | March 26, 2004 7:45 AM
What's your take on the "standing" question. Looking at it from my unlawyerly perspective, that seems the real sticky wicket. How does standing usually play out?
Posted by Jeff | March 26, 2004 9:27 AM
The beauty of what you can do when you have nothing to lose. Other lawyers might worry about offending the court and prejudicing them on future suits but his was a one time shot and he took it for all he was worth.
Just being cocky enough to ask Scalia to recuse himself, and have it work, should have been a early sign of what was to come.
Posted by Scott | March 26, 2004 10:24 AM
Uh, Dave, you're dead wrong.
> The cold war was heating up and the phrase was intended to emphasize America's differences with the "atheist" Communists.
And how did Congress emphasize those differences? By inserting "under God" in the Pledge. Are you really arguing that there is no religious purpose there? Congress wanted to explicitly identify this country as a religious one.
I hope Newdow prevails, though I suspect Jack is right. On the merits, there's little question that he should prevail. And the Supreme Court never compromises its principles for political reasons, does it?
Posted by brett | March 26, 2004 10:30 AM
Ah, an issue Jack and I can get behind together!
I agree that he appears to have done an amazing job for someone who has never appeared before SCOTUS. My favorite Court reporter is Dalia Lithwick, who provides a solid rundown of the events here:
http://slate.msn.com/id/2097737/
The best he can hope for IMO is a 4-4, but when Breyer and Ginsburg sound skeptical, even that seems like a longshot. Stranger things have happened though, and I feel like there is an undercurrent of sentiment that Newdow is probably right, technically--but the Justices aren't all that wild about admitting it.
Posted by torridjoe | March 26, 2004 11:57 AM
Brett,
I'm not sure we disagree. My point was that the phrase was inserted to identify us as a religious nation, but for political reasons.
Posted by Dave Lister | March 26, 2004 12:51 PM
On the standing issue, remember what Jack's colleague Ed Brunet says: "If you're aggrieved enough to go through the stress and expense of hiring a lawyer, you've got standing."
I still remember that quote verbatim from admin law in the summer of 1996.
Posted by Matt | March 26, 2004 2:08 PM