Well, we're at the plate...

[Ravenlock]

www.cnn.com/2004/LAW/03/24/scotus.pledge/index.html

The SCOTUS has begun hearing the pledge arguments. A decision is expected by early July, but if they seem as stacked against it as they do already, I wouldn't be surprised if it's in by May.

How do you all think we stand? I for one, am feeling uneasy, and really wish we didn't have Newdow as our poster boy. Far from the ideal.

*sigh*

~Roger

[Susan in the lab]

I think I posted about this a little while back, but to reiterate some points while adding new ones....

If Scalia were sitting for the case, Newdow wouldn't stand a chance. As it is, he still probably doesn't stand a chance. The comments from Breyer and Souter, not to mention O'Connor (though a pro-pledge vote from her wouldn't be damning) seem to suggest that they still feel that the pledge and the money are exempt from the religious neutrality part of the 1st amendment.

Some of the more recent church-state cases in the 80's and 90's did strengthen separation, but usually with comments of the pledge being mere ceremonial deism. I personally think that argument is crap for several reasons (which again, I think I've addressed elsewhere), but with the moderates like Souter and Breyer saying those comments, I doubt the tie vote will even be a possibility.

Of course, there is a strong likelihood that the case will simply be overturned without any constitutional ruling due to the questionable standing that Newdow had in filing the case in the first place. Given the good possibility that Newdow will lose the constitutional issue battle, I'd rather see the Court just throw it out because of his lack of standing than set a potentially restrictive legal precedent for further Establishment Clause cases.

Breaking down the justices:

Souter, Breyer: crucial swing votes, tie vote depends on them. Arguably the two most important judges in this case (in my opinion)

Ginsberg, Stevens: most likely to side with Newdow, but who knows.

O'Connor: the usual swing voter, but her ruling pro-pledge would not be damning with Scalia gone, as long as Souter and Breyer side with Newdow. Her Wallace v. Jaffree opinion in theory would have her side with Newdow, but she did also include a disclaimer exempting the pledge from the coercion concerns mentioned, so don't count on it.

Kennedy: very likely to vote pro-pledge, but does occasionally go to bat for church-state separation. Unlikely to happen here.

Rehnquist, Thomas: Don't even bother. The first guy once decided that the 10 Commandments were secular when displayed in public school classrooms (one of the most unintentionally humorous court opinions I've read). The second guy is Scalia's clone (ideologically speaking), and we all know what Scalia thinks of this case.

[Seany-D]

I'd comment on this, but Susan already did an excellent job of doing so. I'll merely say that I believe Susan is right in that the best outcome would likely be SCOTUS tossing the case based on Newdow's eligibility to argue said case.

I'm more interested right now to see what transpires over Scalia's refusal to recuse himself from the case involving Dick "undisclosed location" Cheny.

Sean "I could hide out under there" Davis

[familyjules]

I would link to the NY Times front page article, but you have to be a member of the site or something.
But it is on the front page, and it is a good read. They even included some transcripts from the hearing.

[the anti-myrmidon]

Another thought occurred to me this morning about this case:

Say Newdow wins, with a 8-0 decision (never happen, but for illustrative purposes). The pledge either gets thrown out altogether or just the "under God" part. Public outcry will be extreme, and even some of the more open-minded theists outside of the religious right find the decision appalling (which will happen). Now imagine the political fallout.

Think of when Brown v. Board of Education was handed down. The vast majority of southerners (the white ones, at least) were highly in favor of segregation, and it took more than a few decades, plus National Guardsmen, to accomplish desegregation in some form of success. Southern politicians jumped on the bandwagon and gain immense amounts of public support from running as pro-segregationists. There was certainly a lot of success at all government levels in electing these men to office, though the anti-segregation sentiment in the rest of the country helped prevent one from reaching the White House.

Now imagine the political fallout should Newdow win. Currently, both Kerry and Bush are falling all over themselves to advocate a pro-pledge position. This election will quite possibly turn itself in to a holier-than-thou shitfest. But that's not even my concern with this. Imagine how the public outcry against the ruling would possibly affect other Court rulings, maybe Roy Moore's 10 Commandments case would be heard and ruled in his favor. There could be a Pledge amendment made to reverse the decision permanently, and as we know, no congressman with any brains for reelection would dare to vote against it. Dukakis got screwed in 1988 for doing something very similar.

But getting back to electable officials, this would be an unpopular decision on a national level. Geographic isolation would not exist to help us, and there certainly won't be any National Guardsmen to help enforce the ruling. The political scene would be very ripe and open for an extremely anti-separation candidate to take the presidency with a large margin of victory. I can think of fewer things in American politics that would scare me more than "Roy Moore for President 2008 (or 2012)". And yet he would enjoy huge amounts of public support. The more mainstream and moderate Christians who thought he was a bit too zealous might still jump on his bandwagon with a Pledge ruling in Newdow's favor.

Obviously, the comparison between segregation and the Pledge case is not meant to indicate that they are equal in problem or scope. Segregation was a much worse and much more potentially violent issue. But the comparison does go to show the potential effects that a largely unpopular court decision can have in screwing the political arena, even if that decision is the one favoring equality and eliminating discrimination. Just look at gay marriage.

Anyway, just thought I get this out to see what people think.

[Roger School]

God damn, if that isn't an awful picture you just painted, Susan.

While I don't think we'd get it quite that badly, the fallout is, to say the least, going to be considerable. All I can ultimately say is that I think despite whatever negative impacts it may overall have, letting things like this continue to hold the status quo will only lead to further assimilation of the government by religion, making whatever push for separation we may later advance that much more difficult.

I don't think we'll necessarily have riots (although damn... it's not impossible given this political climate and the stupid lot Americans are), but I do think there is something to your concerns about a politically legit and istitutionalized backlash.

Nothing easy is worth doing, they say.

~Roger "We're all gonna die. Before we say goodbye, let's attack!" Smith

[the anti-myrmidon]

I think there's going to be an article in the SN tomorrow about the Pledge case. I got a call from one of the reporters. I think I gave way more information than she wanted. I tend to have that habit. I just hope she doesn't take stuff out of context.

Susan "You were supposed to write what I meant, not what I said" Wise

[Ravenlock]

the said:

I think there's going to be an article in the SN tomorrow about the Pledge case. I got a call from one of the reporters. I think I gave way more information than she wanted. I tend to have that habit. I just hope she doesn't take stuff out of context.

Susan "You were supposed to write what I meant, not what I said" Wise

Yeah we got a call, too, but I see no article.

~Roger

[the anti-myrmidon]

Maybe Monday then. It's a pretty big issue for a college crowd, so maybe they are waiting for a larger circulation day. In any case, I'm sure some letters will be popping up in the opinion section, so ready those word processors for a response

[Seany-D]

the Pledge stuff is right up my alley, and I never got a call ... <sniffle>

Sean "not loved by the media, it seems" Davis

[the anti-myrmidon]

They're probably just going to throw the most controversial stuff each person said and place it next to the most volatile quotes from religious group members. You should probably hold out for a letter to the editor response where you can elaborate more.


MODIFY: typos