Will the Supreme Court reverse the Pledge of Allegiance case?

The Ninth Circuit Court has denied the petition for re-hearing on this case. This was the decision that banned the Pledge of Allegiance because of the words, “Under God.” Eugene Volokh predicts that the SCOTUS will grant certiorari, and reverse the judgment. What do you think?

As an aside, this case is a political boon for the Republicans. While Democratic Senators press their filibuster to “protect” the public from the (presumably) conservative Estrada, the country is exposed to liberal judges making a decision that’s bound to be unpopular.

Didn’t you link to Eugene Volokh last time this came up, in June?

It’s possible. I don’t actually recall.

They’ll most likely grant cert., and they’ll most likely reverse. The Ninth Circuit is the most overturned appeals circuit in the country, and the cert. petition is going up before a Court at odds with that circuit’s judicial philosophy (one’s dominated by liberal activists; the other by conservative activists).

In Senate Committee hearings this summer on the role of ideology in judicial appointments and confirmations, C. Boyden Gray made a statement which included the following assertion:

This strikes me about a pretty fair bit of hyperbole, even assuming that he’s talking about, as he must be, John Paul Stevens and David Souter. Among the most liberal justices of the century? Puh-leeze.

Of course, not to be outdone, Laurence Tribe characterized the current Court thusly:

Riiiight. :slight_smile: So of Kennedy, Stevens, O’Connor, and Souter, who do you think Tribe was referring to as “on the right,” who “moderate conservative,” and who “conservative moderate”? Interesting to speculate.

In any case, the point of this hijack is to comment that the Court really is imbalanced rightward at the moment. In that vein, I agree wholeheartedly with an earlier bit of Tribe’s testimony, where he stated that

This might be fodder for a whole 'nother thread, of course, but I’m curious, december, to get your take on the above statement.

Oh, sorry–the citation for a transcript of those committee hearings is 50 Drake L. Rev. 429 (2002).

I’m not qualified to evaluate the 9 judges, but I will make a couple of comments.

The problem with David Souter is that he is not only quite liberal, but he’s awfully smart and capable. This makes him more dangerous than Ruth Bader Ginsberg, who IMHO is just as liberal, but not nearly as capable.

Conservative and liberal are not necessarily opposites, when the terms are applied to judges. Liberal judges (in the mold of William Douglas) use (or misuse) their power to effectively create liberal legislation. Roe v. Wade is a good example – an excellent law, but unjustified as a Constitutional decision.

Conservative judges (in the mold of Scalia and Thomas) do not use their judicial power to enact conservative legislation. Their position is to shy away from legislating from the bench.

—Conservative judges (in the mold of Scalia and Thomas) do not use their judicial power to enact conservative legislation.—


The court will almost certainly overturn, but I’m interested to hear their rationale. I can’t wait for some more howlers from Rehnquist and Scalia about the founders and “ceremonial deism.”

This is almost as priceless as the idea that the body Constitutionally authorized to confirm the appointment of a judge doesn’t need to know whether the nominee would make a good judge. Are you at all familiar with the names Sutherland, Pitney, McReynolds, Butler, Edward White, of VanDeventer? Any idea what their stance with regard to “judicial self-restraint” was?

Oh, and by the way, with regard to “the Founding Fathers’ intent,” did it ever occur to you that there might have been a reason for the rather broad-brush language used in the Bill of Rights?

I’m with Apos – you made the quoted remark, now prove it – and not with quotes from somebody’s Blog – with clear and coherent reasoning founded on factual data.

Or retract it, and admit in explicit terms that you are simply out to tar liberals with anything you can think of.

“Problem” in whose eyes? “Dangerous” to whom? And how, by God, is Ruth Bader Ginsburg not as capable? Define your terms, please. (Also, note that this has no bearing on what I was asking you to respond to, which was the need for an ideologically and jurisprudentially diverse bench.)

There are liberal activist justices (of whom Brennan is a prime example), and there are conservative activist justices (of whom Rehnquist is a prime example). There are liberal justices who believe in judicial restraint (Felix Frankfurter, famously), and there are conservative justices who believe in judicial restraint (Warren Burger or, hell, Oliver Wendell Holmes). The term “judicial conservative” can apply either to a justice’s ideology or their judicial philosophy; the two things are distinct, and it would behoove you to identify them as such.

Good one. Scalia is coming to my eleven-person Supreme Court Seminar next month, and I actually respect the hell out of him, but a judicial conservative he is not. He’s a political conservative and a judicial textualist; to the extent that his interpretation of constitutional or statutory text is in disagreement with its application by an agency or by Congress, he won’t hesitate to overturn legislation or reverse agency decisions.

I can provide a boatload of cites for you to this effect if you want 'em.

Aside from various decisions on the “Takings” clause and a few religious decisions and so forth.

Conservatives can “legislate from the bench” just as well as liberals. I mean, the classic case of this is Reynolds’s decision in Lochner.



You didn’t ask about William Douglas’s philosophy, but you can find it here, in this book review. I recommend reading the whole review, even though it’s fairly long. It’s totally fascinating.

Scalia’s judicial philosophy is well laid out in his book, A Matter of Interpretation.

December, what have either of their books to do with the question of whether or not either person bends the law to serve their politics? That’s an extremely in-depth argument based on one’s opinion of the law (controversial anyway) and what actually happened: not simply quoting someone’s own moving account of how wonderful and consistent they are. I’m asking you: what leads YOU to the conclusion that Scalia and Rehnquist do not rule as much on politics as law IN PRACTICE?

Ah, but your problem here, Gadarene, is that you’re willing to make reference to actual cases and real decisions, and argue based on evidence. You forget that, from the point of view of many conservatives, any socially or politically conservative decision taken by the Supreme Court is, ipso facto, judicially conservative also. And any socially or politically liberal decision constitutes judicial activism.

Apos, have you read the entire review of the Douglas biography that was cited above?

Without getting into this too much, unless you really want to december, I tend to agree with the “penumbras and emanations” concept underpinning the Roe v. Wade decision at its core. Right to privacy, especially in areas of reproduction, is not unreasonable, to me. YMMV.

In the realm of reproduction, the Constitution is remarkably silent. “Pursuit of happiness”? (resulting in procreation)

Nor, to me, is it unreasonable that some people would want to restrict, especially, late-term abortions. I can see how the court struggled with this issue. You have to, forgive me, split the baby. That angers both sides.

—Apos, have you read the entire review of the Douglas biography that was cited above?—

Yes. It was at once very informative… and also totally unrelated to the question I asked you about the actions of “conservative” judges. Are you saying that your opinion of the political nature of “conservative” judicial rulings is based entirely on a book review about William Douglas?

I think this needs more emphasis than the middle of Gadarene’s post gives it – because it’s an issue that we’ve struggled with a number of times here.

An “activist” judge reads the Constitution broadly and does not hesitate to overturn a law that he considers in violation of his interpretation of the Constitution. A judge who practices “judicial self-restraint” makes the presumption that the legislature usually is as competent as he in determining what is acceptable under the Constitution, and makes the presumption of constitutionality for the law under scrutiny – while he will overturn it if it is proven to violate the constitution, he requires a lot of convincing.

Mr. Scalia is a firm activist on the conservative side – faced with a clear-cut constitutional right on the one hand and a state Attorney General’s vague claim that the state “has an interest in protecting the public morality” on the other, he will rule according to his personal beliefs for the state. On the other hand, if the law is perceived as promoting “liberal” ends, he will not hesitate to deem it violative of the Constitution through creative textual analysis.

No current SCOTUS justice truly practices “judicial self-restraint” but Mr. Kennedy and Mrs. O’Connor have strong tendencies in that direction. This is one reason why, though I disagree with much of their personal political philosophies, I respect them so highly.