February 2009
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Michael Newdow’s case for a godless Pledge

I attended a lecture about the Michael Newdew’s case concerning the constitutionality of the phrase “under God” in the Pledge of Allegience, presented by UCI’s constitutional law prof Donna C. Scheule. These are some notes from that talk, as close to verbatim as I could manage.

A figure in history, Madelin Murray O’Hare. In popular press, she had devils
horns, filed many lawsuits, very rough personality. Out as an Atheist, during
the time of the Cold War. Not only the devil, but also Communist. Religon
separates us “God loving” from the Communist. Catholocism had been a minority
religon, and even started a separate school system. But this separation
between us and the Communists, leads them to identify with each other, and
nationalism, start to ask for public money.

Interesting point about the pledge case, Murray never filed it. Even though
it’s low hanging fruit. Phrase gets inserted during ’54, to “out-God” the
commies. Catholic church is now very much into public sphere religion. The
current ruling only covers public school (private ones can do whatever).

There have been a few challeges over the years, but no serious ones. No courts
have disallowed the phrase. There was a 7th circuit case that declared the
phrase to be constitutional.

Newdow, was in a relationship, had a daughter. When she reaches school age, he
files a case 11th circuit case (Florida). Case was dismissed, because he broke
up, and daughter was no longer in Florida. Then he moved to CA. He’s gone to a
law school, has a medical degree and practiced for awhile. Suit gets filed in
elementary Sacramento. He wanted to be involved. Because of his job, he can be
in classroom during pledge time. Background is secular Jewish.

Refiles the case in Eastern district, gets thrown out. Appeals to 9th circuit,
San Fran. He’s representing self, must go through a screening. If doesn’t make
it, then summary decision against you. However, if succeed it gets kicked up,
to a 3 judge panel. So far this has been a really low profile case.
The panel:
Reinhardt – Supreme court dislikes judges like him, love to overturn
appointed by Jimmy Carter, never had judical experience
liberal, married to ACLU
Fernandes – spanish guy, very erudite. Conservative. under-the-radar (no
news) Not gonna get his vote.
Goodwin – appointed by Nixon, carrer judge, middle-of-road, pragmatic
been there awhile, now 85 yrs old. His father is a minister.
Family had 9 children, not much money. Moved around alot.
Not a whole lot of use for organized religion. Doesn’t see the
payoff of ministry. Might want him, because he’s otherwise

9th circuit covers: Alk, Haw, Ariz, CA, NV, Montan, Guam, Marina Islands
Cases come into chambers, and get assigned to panels. Clerk assigns a
weighting and alerts Reinhart. As head of panel, he dismisses his choice,
Goodwin picks it up. If Reinhart had taken it, judgement writing would not
have had as much weight.

Decision goes by oral argument. ACLU doesn’t show, the case has no media,
argued by Newdow himself. Goodwin, remembers when the made the insertion,
didn’t understand it then. Newdow wins!

Judge tips her off. Heard later, through the news about the decision. It was a
shit-storm. Goodwin’s old, using his remaining time. News disturbing, threats
on life, picketing his house, etc. But he’s up in Oregon, and doesn’t get much
flack. (He doesn’t live there in June, when the news came out.) Talk radio is
ablaze. Had to quite taking phone calls that day. Scalia condemns the
decision. Senate votes to centure (unanimous, inc CA sens.) 9th circuit has
bldng headqtrs in San Fran, so media picks up on “Liberalism”

She grabs the decision, and enjoys it like a feast. The judge hung the Supreme
Court on its own petard. Every other line is a Supreme Court quote, they’re
now locked up, they can’t disavow their own language. He can’t even be accused
of misquoting. Scalia, shoots his mouth off, doesn’t like the decision. But
Goodwin has saved all the death-treats.

Couple months later, Sandra petitions court, claims that he lacked standing
because he doesn’t have custody of the daughter. Newdow’s, relationship had
gone very sour. Suit was filed in his name, not the daughters. She might be
vindictive, or didn’t want daughter involved in it. The standing litigation
went through, standing was approved.

Case went Enbanc, in 9th circuit it gets an 11 judge panel. But a vote for
that didn’t go through. So case goes to Supreme Court. Newdow, claims Scalia
is biased. Because he’d popped his mouth off earlier, Newdow is right.
Couldn’t refuse to rucuse himself. So, now there’s an empty seat. On the day
of oral argument there’s 8 judges.

Now that case has attention, ACLU and others offer services. At this level you
can’t argue your own case. But Newdow had never taken the BAR. So he takes it,
borrows someones notes (2 weeks studying, passes). But in order to argue, he
must have been lawyer for 3 years, he applies and get special dispensation. He
goes around and practices with pretend panels.

Fed gov’t intervenes. The case is now no longer about a small school. There’s
a solicitor general (lawyer Ted Olson, for whom Supreme Court is a sandbox).
Newdow faces tough competition. Plenty of media coverage. The state of union
when case hits supreme court: the decision of the circuit binds the circuit.
(So kids in 9th don’t say ‘under god’ but kids in other districts do) It had
to have intervention.

9th circuit policts were worried about being broken up. The decision was
stayed (didn’t go into effect).

Schuele went to go watch the oral argument (in a good position, clerk history,
records access) to write a book about the case. LA Times, writes a big
article, predicting Newdow would implode. It was a skewed article. She had a
reserved seat. There were pickets outside, avoided them with a sidedoor. It
was an electrified house, packed. Clerks are pushed into space between wall
curtains. Scalia’s empty chair is very obvious.

Schoolboard argues standing and custody. Olsen argues. Newdow goes second.
Starts slow, picks up steam, gets progresively better and better. Get the
sense that this is his only case, he knows it inside and out. Has an answer
for every question.

Court is arranged with terrible acoustics. The semicircle prevent seeing who’s
asking the question. Briar and Guinsberg, are on the outside (they’re new).
Renquist is center. All justices tips hand that he has standing, but for
different reasons (as taxpayer, etc) Stevens, seems to be the only one that
thinks he is substantive. At one point Newdow says stuff that and the
audience cheers. The Court, has sent a message that it’s another political
body, they brought the public. Renquist is pissed at the disruption.

Newdow argues that the phrase is divisive. Renquist: The Senate voted
unanimously to put it in. The Senate voted 99 to nothing against the 9th
circuit. What’s so divisive? Newdow: It just goes to show that an atheist
can’t be elected. Court erupts!! Renquist, clearly irate, goes crazy banging
his gavel He had answers for everything, never backed down, fully prepared.
Judges seem against him, audience loves him.

Had lunch with family. Ken Star was there, says that was the best argument
that he’d ever heard. But it was still sad, it looked like the Supreme Court
didn’t have the guts to do the right thing. One of the issues, substantive,
was wether “Under God” has become an automatic thing, too much time, it has
lost its religous significance. Where was Murray OHare?? So, this argument
open the door, to argument that Court is making a time-based/political decision.

Goto conference, take a vote. If chief justice is majority, then keeps case
for self or doles it out. If in minority, the other judges get to dole it out.
Stevens would be that person. But without Scalia, the case could tie. In that
event the 9th circuit decision stands.

Kennedy: thinks tie weakens court as an instution. He really doesn’t want a
tie. But will he change his decision? no.

A deal was probably struck, it was 5-3 against Newdow.
3: O’Conner, Renq, Thomas
believe newdow had standing,
merits had been reached,
phrase is constitutional (but all diff reasons)

Because Goodwin had written an opinion that quoted previous Supreme Court, he
forces them to overturn the precidence if they don’t like it. Thomas was the
only one that agrees the quotations, but thinks that Supreme Court must
overrule previous decisions. O’Conner and Renq want to twist.

the 5:
Kennedy wanted to get rid of the 9th opinion, and the tie. Delays the issue.
Stevens made a deal, writes a convoluted piece, about Family law in CA. gets
it all wrong. (Sup Crt, has no experience with Fam Law cases). It’s wrong, sets
dangerous precedent for stading, Will be a generation before a sympathetic
court will be present.

Newdow has set up a website, he need another fed panel to rule same as 9th.
Soliciting cases that have better standing. The issue isn’t dead. But timing
is bad, change in court membership has not been positive.

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