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Scalia's recusal

Justice Scalia's decision to recuse himself from the Pledge of Allegiance case leaves court looking for a fifth vote to overturn 9th Circuit's ruling.

Date published: 10/20/2003

Justice's decision sets up odd scenario

THE SUPREME COURT of the United States has nine members to prevent tie votes, which preserve the legal status quo in an unsatisfying way. But now, perhaps because of comments he made in January during Fredericksburg's Religious Freedom Day ceremony, Justice Antonin Scalia will recuse himself from the much-in-the-news Pledge of Allegiance case, making possible, by a 4-4 deadlock, the very outcome he and most Americans loathe.

Even so, the high court has agreed to hear arguments and rule whether it is unconstitutional, as the 9th U.S. Circuit Court of Appeals holds, for school authorities to lead children in the Pledge while it contains the words "under God."

Most Americans were floored last year when the 9th Circuit, ruling on a suit by California atheist Michael Newdow, found the Pledge in violation of the Establishment Clause because of its divine verbiage. After a public outcry, the circuit court narrowed its ruling to forbid only the recitation of the Pledge in the public schools. This satisfied Mr. Newdow. He had objected to the "indoctrination" of his second-grade daughter, who was required to stand reverently for the Pledge, but not to repeat it. The 9th's ruling applies to schoolchildren in California, Oregon, Nevada, Montana, Washington, Idaho, Arizona, Hawaii, Alaska, and Guam.

Given the current makeup of the Supreme Court and its voting history, overturning the 9th's ruling was popularly viewed as a slam-dunk 5-4 decision. Now, because of Mr. Scalia's recusal, there is a question whether that fifth vote will materialize. If it doesn't, every American public school child's Pledge eventually may be shorter by two words.

The hard truth is that precedents concerning religion in public schools, set in a half-dozen landmark Supreme Court decisions since 1948, appear to bolster the 9th Circuit's ruling. A daily, solemn, patriotic vow that recognizes a deity does indeed work to establish religious faith. But by agreeing to hear a California school district's appeal of the Newdow case, rather than just leaving it be, the court sends the message that its prior rulings may need "refinement."

Mr. Scalia won't be one of the refiners. By virtually pre-ruling on a case he should have expected might soon land before him, he was unjudgelike. You would expect this kind of revealment more from a one-gallus JP than from a man addressed as "Mr. Justice." Still, his spot-on Fredericksburg statement about the Pledge case--that courts have, without historical warrant, too often chased faith from the public square--merely reiterates some of his past written opinions. Under such circumstances, most judges would stay in their robes and hear the case. Mr. Scalia won't. He deserves credit for choosing the high road of self-disqualification.

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Date published: 10/20/2003