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The Supreme Court Decides Not To Decide

The "Under God" case ended not with a bang, but a whimper. It was decided on a technicality, leaving a bad taste in the mouth of anyone hoping for the final word on this very difficult question.

A majority of the justices decided that Michael Newdow, the California Atheist who objected to his daughter reciting the Pledge of Allegiance, did not have "standing" to sue the School Board. What does this mean? It means that it is as if none of this ever happened. Since Newdow did not have the right to bring the lawsuit in the first place, the lawsuit is dismissed. Most significantly, the decision of the 9th Circuit Court of Appeals holding that the pledge violated the constitution is vacated. But we still have no answer to the question whether the State of California, by forcing children to repeat the words "under god" every morning, violates the establishment clause of the First Amendment.

What may seem like a big cop is actually an interesting look into the workings, or perhaps disfunctionalities, of the current Supreme Court.

My analysis starts with the observation that, except for certain rare instances, the Supreme Court chooses which cases it wants to hear. The Supreme Court is asked to decide tens of thousands of cases every years, and chooses about a hundred, sometimes less. So the first question to ask is "why did the Supreme Court decide to hear this case?" The answer is usually because the case presents an important issue to be decided. Most of the time, the issue is more important than the case itself. We have all heard of the Miranda warnings. Miranda is the name of some guy who was arrested (and not read his rights). The Supreme Court heard his case and the rest is history. Nobody knows (or cares) what happened to Miranda -- his case wasn't all that important -- but the issue to be decided was.

So when the Supreme Court decided to hear Newdow's case, it was pretty much assumed that it would have something important to say about the separation of State and Religion. But it didn't. The only decision the Supreme Court made was not to make a decision. And the reasons it decided not to make the decision don't seem to be all that important.

So why did the Supreme Court decide that it was important to hear this case if it was only going to decide not to decide? Remember that the 9th Circuit Court of Appeals had decided that the Pledge of Allegiance was unconstitutional. What this meant was that if the Supreme Court didn't do something, then the decision of the Circuit Court would stand, and the Pledge would be outlawed for the part of the Country covered by the 9th Circuit, which includes California. Now THAT would be a problem, and this was a case that called out for the Supreme Court to decide. I think we can all agree that the Pledge of Allegiance should be the same in California as it is in New York or Illinois or Florida or Texas. Well, maybe not Texas.

It seems pretty plain that although the Court could agree that it had to decide the case, they couldn't decide on how it should be decided. There are nine justices on the Court. If five agree, then there is a decision. Scalia abstained from hearing the Newdow case, leaving eight. Does this mean that there was a 4-4 tie on the "under God" language? Not necessarily. A tie would leave the Circuit Court decision standing, and since there is little doubt how Scalia would rule on this issue, if four justices wanted to rule that the "under God" language was unconstitutional, they probably would have jumped on the opportunity to decide the issue without Scalia.

We know that three of the justices really wanted to decide the big issue. Rehnquist, O'Connor and Thomas all wrote separate opinions explaining why they thought that the "under God" language did not violate the Constitution. Here's a question -- why did they express their views on a subject that was not up for decision? Once a majority voted that the issue could not be decided, there was no reason to address the issue at all.

Rehnquist and O'Connor wrote dry, very forgettable opinions essentially expressing the view that the words "under God" were not religious enough to implicate the constitution. This view, which might be regarded as the conventional wisdom on the subject, simply begs the question. If the phrase is so insignificant, why does it invoke so much emotion and such an outpouring of opinion? Why not "under Allah" or "under Chango?" An interesting side note: What if we took a poll and asked how many people agreed that we are "one nation under God." And then we asked how many people agreed that we are "one nation under Allah." Would the results be the same? Why not?

Justice Thomas is another matter altogether. He's so off the wall, it's weird, it's scary, and I'm not sure if he's a genius or a psychopath. He's not conventional and he's not boring, and this much I admire. Thomas first observed that if the Court were to apply established precedent, then there would be no way to avoid holding that the pledge were unconstitutional. So far so good, but we know he's just setting us up for something. He goes on to express the view that the so-called "anti-establishment" clause of the first amendment only prevented Congress from interfering with official religions established by the separate states. In other words, under Thomas's view, States could establish official religions, and the Federal government would be prevented by the constitution from doing anything about it. Wanna live in Utah? Better be Mormon.

Weird? Scary? I told you so.

Don't lose any sleep over it. None of the other Justices agreed with Thomas. He's just a voice in the desert. At least for now.

But let's look at this another way. Doesn't the right wing complain all the time about judicial activism? Look what Thomas wrote:

At the beginning of his opinion, he wrote: "I would take this opportunity to begin the process of rethinking the Establishment Clause."

Opportunity? A majority of justices vote that there is nothing to decide, and Thomas sees it as an opportunity to give a gratuitous opinion as to the meaning of the constitution?

But it gets worse. At the conclusion of his opinion, Thomas writes:

"I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States."

This is the closest a Supreme Court Justice can get to advertising for cases. I don't know, sure seems like judicial activism to me.

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