The Pledge decision is just the latest addition to an already lengthy list of cases in which the current U.S. Supreme Court has imprudently abdicated its primary role... The Pledge of Allegiance Decision:
Imprudently Standing on a Technicality

On Monday, when eight of America’s preeminent legal minds decided a constitutional challenge to the public acknowledgement of our nation’s common religious heritage, the result was nothing less than jurisprudential incoherence.

The case, of course, was Elk Grove Unified School District v. Newdow, No 02-1624 — otherwise known as the "Pledge case" because the non-believing plaintiff, the Reverend Doctor Michael Newdow, brought the lawsuit to invalidate the Pledge of Allegiance based upon its inclusion of the phrase "one Nation under God" — and the result, in and of itself, wasn’t news.

The U.S. Supreme Court came down with the decision everyone had expected for months, reversing the U.S. Court of Appeals for the 9th Circuit, which had two years prior thrown the constitutionality of the Pledge into doubt through an unexpected and much derided decision of its own. But how the High Court reached the conclusion that the 9th Circuit had erred surely was news.

Despite the justices’ unanimous agreement that the ruling of the federal appeals court on the geographic and jurisprudential left coast had to be overturned, their decision neglected to answer the basic question at the core of the case: "Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance … violates the Establishment Clause of the First Amendment." This after full briefing by the parties and the Solicitor General of the United States, the filing of more than 50 amicus curiae ("friend of the court") briefs, an hour-long oral argument, and in the face of unequivocal past pronouncements by a dozen current and former Supreme Court justices instructing that the voluntary recitation of the Pledge, including the phrase "one Nation under God," is perfectly consistent with the First Amendment’s prohibition on an "establishment of religion."

Instead, the eight justices of the High Court who sat in judgment of the "Pledge case" — Justice Antonin Scalia was notably absent, recusing himself because he made public comments supporting the Pledge’s constitutionality before the appeal even arrived at the Supreme Court Clerk’s Office — crafted a decision that dealt more with if and when the Court should resolve serious constitutional questions than the fundamental church-state issue clearly at hand. In fact, the five justices comprising the majority, led by Justice John Paul Stevens and including Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer, never once in their precedential pronouncement commented on whether the addition of the words "under God" to the Pledge should be of any constitutional consequence at all.

Based upon their written opinion, the sole concern of the majority was not whether the First Amendment could be offended by a passing reference to God in a patriotic public exercise, but rather "‘an idea, which is more than an intuition but less than a rigorous and explicit theory, about the … prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.’"

Because of this vague "idea," called "prudential standing," the five-justice majority searched page after page for a reason why the Court should not decide the merits of the "Pledge case." They never found a satisfactory one — not that it mattered.

The majority’s clear goal was a pre-determined and result-driven end, rather than serving the means of logical and rigorous legal analysis. Thus, the jurisprudential support for the new rule they would announce was really beside the point. The majority simply had to pull together enough past precedent to conjure up the illusion that the Pledge decision had some basis in law and fact.

True, the five justices explored a few prior Supreme Court cases that were only marginally relevant. They criticized the 9th Circuit’s interpretation of a couple of California state appellate decisions about the extent of a non-custodial parent’s right to influence his child’s religious upbringing. And they even went so far as to summarize the legally ambiguous contours of the custodial relationship between Plaintiff Newdow, his daughter’s mother and his daughter, who was the alleged victim of being coerced into hearing the Pledge complete with its religious reference. But none of this judicial posturing really lent much support to the wholly new legal rule the majority announced would control the outcome of this case.

Rather, the five justices went it alone in the penultimate paragraph of their opinion when they held: "In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of a lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law."

No citations followed. In fact, the five justices didn’t even analogize or refer to other cases where a similar rule had been suggested or anticipated. They could do neither. The holding was a pure creation.

And why did the majority find it crucial never to reach the merits of the constitutional question? Why did five justices conclude it wasn’t prudent to decide whether the phrase "one Nation under God" rendered the Pledge of Allegiance unconstitutional under the First Amendment’s Establishment Clause? They didn’t say.

The lack of an answer is not so unusual in recent years, as the High Court has increasingly sought to completely duck or compromise to resolution those contentious constitutional cases that raise the most novel legal questions. Likewise, the absence of a legally sound and jurisprudentially consistent rationale is not surprising when far too often many of the justices seem intent on providing as little guidance as possible through the thicket of constitutional conundrums the Court has left in the wake of its ad hoc decision-making.

The Pledge decision is just the latest addition to an already lengthy list of cases in which the current U.S. Supreme Court has imprudently abdicated its primary role as the ultimate interpreter and final arbiter of what the Constitution means. In abandoning this responsibility, not only has the Court failed to perform its function of deciding the individual cases of obvious importance, but it has also caused the very ambiguities that led to the Ninth Circuit’s aberrant and abhorrent decision in the first place.

To download the amicus curiae brief the Center for Individual Freedom filed, urging the Supreme Court to uphold the constitutionality of the Pledge of Allegiance, click here (pdf).

[Posted June 17, 2004]


Other Voices on the Pledge of Allegiance Decision

On Flag Day, the U.S. Supreme Court, by an 8-0 vote, overturned a lower court’s ruling declaring the inclusion of the words "one Nation under God" in the Pledge of Allegiance unconstitutional. However, the basis for the High Court majority’s decision came under immediate fire. Rather than addressing the constitutional question at hand, specifically whether a reference to "God" constituted an impermissible government establishment of religion, the majority instead held that the plaintiff in the case did not have standing to bring the challenge. The decision has prompted some to say that the Court "punted" and others to criticize the Court for ducking its responsibility. The following is a selection of comments about the Court’s decision:

"The Supreme Court’s evasive nonruling on whether the phrase ‘under God’ belongs in the Pledge of Allegiance is not playing well across the country. The most common complaint seems to be that the court ‘punted,’ a polite way of saying that the justices did not want to do their job by ruling on the substance of the issue. Call me a cynic, but I think the liberals on the court didn’t want to cause an uproar that would help Republicans in an election year. Better to come up with a soothing but temporary political decision — restoring ‘under God’ for now while clearly inviting a future challenge that the court will be only too happy to grant once the political coast is clear. We deserve a better, more honest Supreme Court."

— Columnist Jon Leo, in U.S. News & World Report

"Court deliberations are secret. But it is a very real possibility that the five-justice majority in this case had come to the conclusion that, in order to affirm the separation of church and state and resist the trend of trivializing all mentions of the deity in order to keep them in public life, they were going to have to rule for Newdow. But that would mean inflaming a wedge issue in an election year, precipitating loud calls for their impeachment and for all kinds of assaults on the First Amendment, all because one malcontent amateur lawyer from California feels threatened by the culture he lives in. So, like the good lawyers they are, the five justices found a loophole. Newdow, it turns out, doesn't have custody of his daughter. And the girl's mother is a born-again Christian who likes the Pledge of Allegiance just fine as it is, thank you."

— An Editorial, in the Salt Lake Tribune

"To dismiss the case, the majority had to invent a novel standing doctrine. The Court’s accepted practice, as Chief Justice Rehnquist made clear, is to defer to lower courts on interpretations of state standing law. To deny Newdow standing, the majority did not enforce a rigid technicality, it created a new one."

— Writer Vincent Phillip Munoz, in National Review

"None of this is meant to suggest that the Supreme Court Shuffle is an easy number. It takes eight or nine members dancing in a line with their eyes tightly closed to avoid anyone butting in with a dissonant step. At the head of this constitutional conga line was an 84-year old justice, John Paul Stevens, who showed that an octogenarian can still dance wildly in a crowded legal room without touching a single substantive issue. As for parents, they will remain the perennial constitutional wallflowers, waiting awkwardly for another dance and some justice willing to notice them."

— George Washington University Law Professor Jonathan Turley, in Newsday

"Having pledged before and after the ‘under God’ clause was added, I didn’t think those two words were any big deal. But I did suspect they were unconstitutional. So I figured that the court dodged a bullet in the culture wars. But now I'm afraid it only provided arms for the custody wars."

— Columnist Ellen Goodman, in the Boston Globe

"Football season is still a few months away, but the Supreme Court showed this past week just how useful a punt can be. Pondering the constitutionality of ‘under God’ in the Pledge of Allegiance — a daily recitation in American public schools — the justices decided the case not on its merits but on a technicality."

— Columnist Philip Terzian, in the Providence Journal (Rhode Island)

"But none of that really matters because the court's decision was on a technicality and not on the merits. To be blunt, the justices dodged their responsibility by not deciding the case on the real merits of the case."

— Columnist Mike Cline, in the Marion Chronicle-Tribune (Indiana)

"This isn’t a custody issue. It's much larger than that. It’s unfortunate the justices failed to see that."

— An Editorial, in the Lancaster Eagle Gazette (Ohio)

June 24, 2004
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