I mentioned yesterday that the Supreme Court will consider an appeal of the controversial “under God” in the Pledge case. I neglected to mention that Justice Antonin Scalia, the high court’s most active and boisterous conservative, announced that he will not be participating in the case.
This is not only a surprising turn, but it very well may influence the outcome of the ruling.
It’s unclear exactly why Scalia decided to take himself out of this case. While such recusals are somewhat unusual, justices rarely announce publicly why these decisions are made.
Many believe Scalia’s decision comes as a result of his public criticism of the 9th Circuit’s ruling earlier this year.
In January, Scalia attended a rally sponsored by a group called the Knights of Columbus, a Catholic men’s service organization that was a leading advocate of adding “under God” to the Pledge in 1954. During his remarks at the event, Scalia used the 9th Circuit’s ruling as evidence of attempts to “exclude God from the public forums and from political life.” He added that the basis for the 9th Circuit’s ruling was “contrary to our whole tradition.”
These comments led Michael Newdow, the California man responsible for bringing the Pledge lawsuit to federal court, and my friends at Americans United to argue that Scalia had already come to a conclusion about his case nad announced this conclusion publicly, and his lack of impartiality is legitimate grounds for recusal.
As the New York Times explained, the “code of judicial conduct and a federal law that incorporates it both provide that judges ‘shall disqualify’ themselves in cases where their ‘impartiality might reasonably be questioned.'”
This has the potential to change the outcome of the ruling. Scalia would have voted, obviously, to overturn the 9th Circuit’s ruling. If the remaining justices are evenly split, 4 to 4, the controversial appeals court decision barring the use of “under God” in the Pledge would be upheld.
If you read my post from yesterday, you know that I happen to agree with the 9th Circuit’s ruling. That being said, I’m desperately hoping, as a practical matter, that my side loses this case.
Being right on principle, in this matter, isn’t enough. If the Supreme Court rules against “under God” next year, it will do so just five or so months before the presidential election, handling the GOP and other conservatives a rallying cry that will stir its base.
More importantly, if the high court upholds the 9th Circuit, Congress will be overwhelmed by an outcry for a constitutional amendment preserving the post-1954 Pledge’s wording in constitutional stone. The “victory” will be short-lived and ultimately self-defeating.
If given a choice between a separation of church and state that allows for a largely meaningless exception in the Pledge vs. a constitutional amendment creating a permanent exception to the First Amendment, I’ll take the prior over the latter every time.