The code of conduct for federal judges says that a judge should avoid public comment on the merits of a pending case. Last summer Scalia publicly criticized the Ninth Circuit for ruling in Newdow that the Pledge is an unconstitutional establishment of religion since it describes the nation as "under God." Michel Newdow, the self-professed atheist who brought the case, cited the Justice's remarks in a filing last month that questioned Scalia's impartiality.
Maybe Scalia decided that his comments were grounds for recusal. Yet he might not have taken himself out of the case if he thought his vote would be needed to break a 4-to-4 tie. Scalia may know which way Newdow will go--though the rest of us, on the outside straining to see in, obviously don't. But one can hope for the right outcome, and surely there are at least five Justices--indeed, there should be eight--prepared to reverse the Ninth Circuit.
The Supreme Court will consider two questions. The first is whether Newdow has standing to challenge his daughter's school district (Elk Grove, in California) over its policy of having teachers lead students in reciting the Pledge.
When he initiated his case in 2000, Newdow claimed standing "as the father of a child attending the state's public schools." But the matter has proved more than a little complicated. Newdow and the mother of their daughter never married. The daughter lives with the mother, who wants her daughter to say the pledge. The mother's wishes are important because she has sole legal custody. Or at least she did until last month, when a California court gave Newdow joint custody. The implications of that decision for his standing in the pledge case are as yet unclear, since the opinion detailing what "joint custody" will mean is still being written.
Right now, the Ninth Circuit's view of Newdow's standing is the one before the Supreme Court. And the Ninth Circuit says, in effect, that Newdow has standing even if his daughter's mother has sole legal custody. Why? Because she still would have "no power . . . to insist that her child be subjected to unconstitutional state action"--action by which the child is told that "her father's beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom."
The complicated standing question would interest especially Scalia, and were he not recused, the oral argument would probably yield notable exchanges on the issue between the Justice and Newdow, a lawyer who is representing himself. Scalia's recusal likely means, however, that the Court's interest in the standing question will wane and that the Justices will reach the substantive question of whether having students recent the pledge is unconstitutional.
Actually, that should be an easy one for the Court. Sixty years ago it held that public schools may not compel students to recite the Pledge of Allegiance. Elk Grove (like every other public school district in the country) passes that test, since no student is forced to say the pledge.
As for the ostensibly unconstitutional words, "under God," which Congress added in 1954, the issue here is how they should be analyzed. Agreeing with Newdow, the Ninth Circuit lifted "under God" from the pledge and held that the prepositional phrase contains a profession of religious belief.
But surely it is wrong to understand "under God" in isolation. The pledge needs to be taken in its entirety. As such, it is still a pledge to the flag and the republic for which it stands, still a patriotic statement and not a religious one (compare, say, the Apostles Creed), the words "under God" accomplishing the congressional intention of affirming the role of religion in the life of the nation. That role traces back to Lincoln at Gettysburg ("that this nation, under God, shall have a new birth of freedom") and, not least, to the Declaration of Independence ("endowed by their Creator with certain unalienable rights").
The Ninth Circuit is famous for extreme applications of Supreme Court precedents. It went to extremes in Newdow, and it has in effect invited the High Court to affirm its extremism. Surely--would that the recused Scalia could tell us!--it won't. But if it does, expect that the bipartisan movement to amend the Constitution and declare the pledge just fine will be swift--and successful.
Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.