No wonder Chief Justice William H. Rehnquist talks about quitting. He can't keep a lid on things at the Supreme Court. Former Justice Harry Blackmun is leaking secrets from the grave; Justice Antonin Scalia is corresponding with his detractors. And today, at oral argument in the Pledge of Allegiance case, there is an outburst of partisan clapping in the courtroom. Clapping. In church! I mean ... in court! An incensed Rehnquist barks that the "courtroom would be cleared" if he heard any more of this nefarious clapping. Stuff like this just doesn't happen at the Supreme Court.
But then everything about oral argument today in Elk Grove United School District v. Newdow is astonishing. Michael Newdow—the atheist challenging the constitutionality of the words "under God" in the pledge—shatters every one of the inviolate rules of Supreme Court advocacy: The doctor-slash-lawyer represents himself in a performance both passionate and personal. Never having argued a case at the high court, Newdow should have been a sloppy, overzealous mess. But this reviewer gives him five stars. He may still lose this appeal, but he absolutely won the day.
The constitutional challenge was brought on behalf of Newdow's daughter, who attends a public elementary school in the Elk Grove district in California. In July 2000, the district court found that the policy of teacher-led recitation of the pledge each morning does not violate the First Amendment's ban on state "establishment" of religion. But in June 2002, the 9th Circuit Court of Appeals reversed that decision, holding that Congress' 1954 grafting of the words "under God" onto it rendered the whole pledge unconstitutional. Dickering in the 9th Circuit resulted in a slightly amended decision, nevertheless holding that the school district's policy violates the Constitution. You probably recall that June day for the roaring of terrible roars and gnashing of terrible teeth it engendered. One of the thorns in this case is that supporters of the pledge say the words "under God" are political, historical, ceremonial—anything but religious. But if the protests and demonstrations and national polls reveal anything about the merits of this case, it's that the words "under God" really are about the Jesus-Church-Prayer type of God for most Americans.
The first attorney to speak is Terrence J. Cassidy, representing the school district. Most of his time goes to clarifying whether Michael Newdow even has legal "standing" to bring this case. The issue—which, if decided against him could keep the court from even considering the pledge issue—is whether Newdow has a legal claim. His daughter's mother (a born-again Christian) has primary legal custody, and therefore only she has the right to direct and control the child's educational and religious upbringing. And mom has no problem with God.
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?
Solicitor General Ted Olson has 15 minutes to argue on behalf of the pledge. Olson reminds the justices that a lower court thought Newdow's decision to bring this lawsuit without consulting his child's mother was "unconscionable" and that it reflects Newdow's failure to really consider the best interests of his daughter.
Having heard almost 20 minutes on the standing issue, the chief justice gathers himself up and reminds everyone that "the merits have nothing to do with the standing issue" (or better, "get on with the pledge stuff"). Olson segues smoothly to his main argument: The pledge is about education, not religion, and he tosses out a zinger suggesting that for all Newdow's alleged concern for the effects of religious coercion on his daughter, he shows a lack of concern about thrusting her into "the vortex" of this dispute.
Olson says that the words "under God" reflect "an acknowledgment of the religious basis of the framers of the Constitution." Justice Ruth Bader Ginsburg asks, "Why not have a choice? Children who want to say it can say it and those who don't, don't have to?" Olson answers that under West Virginia v. Barnette—the 1943 case saying Jehovah's Witnesses did not have to salute the flag—this is already the law. He adds that Thomas Jefferson took out a provision in Virginia's Bill of Rights that would have acknowledged the "Holy Author Jesus Christ," precisely because it would have offended "Jews, Hindus, and infidels."
Michael Newdow gets up, and stuffy reporters like me, who cringe at zealots who insist on being their own oral advocates and wince at the brashness of a man who actually asked for (and got) a Scalia recusal, are rocked back on our heels. Newdow opens with the mental picture of his daughter (not allowed to attend today) with a "hand over her heart, saying her father is wrong."
Kennedy wants to address the standing problem. He says, "You are asking us to take the extraordinary, breathtaking power to declare something unconstitutional," adding that if he asks the court to use that power, he should personally take on the consequences. But, worries Kennedy: "Your daughter bears the blame. She will face the public outcry." Newdow affirms that he has standing to bring this case based on specific, individualized harm to him, not to her.