Elk Grove v. Newdow, now Scalia-free!

Who knew that Justice Antonin "Benito" Scalia had such integrity? Justices aren't supposed to announce ahead of time how they'd rule on particular kinds of cases, because it indicates that they've made up their minds in advance of actually hearing the arguments and seeing the evidence specific to each case. Since he's already gone on record saying the the lower court's ruling was wrong, and he favors requiring schoolchildren to pledge allegiance to a nation "under God", he's recused himself from an upcoming Supreme Court case on that question. OK, so he had to be asked to recuse himself, but at least he did it.

Granted, we all know that Clarence "Uncle" Thomas and William "Über Justice" Rehnquist have already made up their minds the same way, and it's a safe bet that John Paul "Same Age as the Pope" Stevens and Ruth "Buzzy" Ginsberg have already made up their minds the other way. But it's a necessary fiction for us to pretend otherwise, on the basis that they've never said so, like Scalia did. The Supreme Court would never be able to rule on Key Issues Of Our Times, if the only people who could serve were those who'd never really thought about them before.

The whole question behind this case strikes me as absurd. Including the phrase "under God" in our national Pledge of Allegiance is clearly an establishment of religion. Hell, that's what the phrase is there for: to declare that this is a God-worshipping nation. Requiring schoolchidren to recite it every day (or face shunning by their peers over it) is religious indoctrination (or "education", if you prefer), plain and simple. What other purpose could it possibly serve?

The phrase wasn't even a part of the original Pledge. It was added only a couple generations ago, during the 1950's, when the U.S. Congress wanted to differentiate the United States from its Cold War enemy, the Soviet Union. This is the same Congress that gave us Joe McCarthy and the ironically named House Un-American Activities Committee, which engaged in political witchhunts that ruined people's careers, reputations, and lives based on coerced accusations and confessions. The same Congress that held hearings about the unscientific ramblings of Dr. Frederic Wertham claiming a causal relationship between comics and juvenile delinquency, which led to the formation of the Comics Code Authority, a cartel that suppressed the distribution of comics that didn't adhere to a conformist social agenda. The same Congress that added "In God We Trust" to all U.S. currency. (It was already on our coins, having been added during the religious anxiety of a previous war, in the 1860's.)

So let's recap the work of the 1950's Congress: legislative trials in which defendants were considered guilty until proven innocent, government endorsement of a trade-restraining trust dedicated to censoring the press, and the expanded use of a slogan that had originally been instituted specifically to identify the U.S. as a Christian nation. It was an vertiable orgy of legislation that defied the principles of the Constitution and Bill of Rights. So of course the addition of "under God" defied the First Amendment. It's what that the (Catholic) Knights of Columbus lobbied them to do. It's what the Congress was elected to do. (Evidently it's what they're still elected to do, as they've been falling over each other rushing to re-endorse this theocratic nonsense.)

But I don't trust the Supreme Court to acknowledge this fact. Even if they recognise what Congress was up to (as I'm sure most of these very bright women and men do). The Supreme Court was intended to be kept free from political pressure, and many times over the past couple centuries it has taken advantage of that to drag American society kicking and screaming into the future. But I don't think they have the constitution to do it in this case. Scalia's recusal improves the odds, but not by a lot.

For one thing, even the "liberals" on the Court are mostly pretty moderate. Classic reformist liberals like Warren, Burger, Brennan, Blackmun, White, and Marshall are all gone. Even Stevens, the remaining member of that pre-Reagan liberal majority, has always been more of a GOP-appointed moderate; he's a liberal mainly in comparison to the new kkkids on the block. And although some of these moderates might recognise that the current state of affairs is Constitutionally inappropriate, they also recognise that changing it could touch off a holy war, and they don't want to see that happen. (Almost certainly the next Supreme Court nomination would include a litmus test over this question, and no one less religious than the Pope could get Senate approval.)

Besides, the Justices are all theists: four Protestants, three Catholics, and two Jews. (In fact, only one person without a declared theological affiliation has ever served on the Supreme Court: David Davis, appointed by his friend Abraham Lincoln.) I suppose it helps that none of them except Uncle Thomas are among the Baby Boomers (and later) who grew up with the Pledge of Theocratic Allegiance, but that also means it was their peers who elected the Congress that did it.

Frankly, I kinda wish the Supremes hadn't agreed to take this case. I can't help thinking of fiascos like Bowers v. Hardwick (in which the Supremes upheld a law against private consensual sodomy) or Boy Scouts v. Dale (which affirmed the Scouts' right to practise discrimination on the basis of religion and orientation) which backfired by setting new legal precedents that would serve to undermine the rights the appeals were intended to strengthen. If the Supremes say it's OK for public schools to teach children to pledge allegiance to God's republic, then that'll make it harder to argue against (for example) spending government money to fund privately-run programs that require its participants to do the same (such as homeless shelters that require people to join them in worship before getting a meal and a cot).

Maybe I'm just too chicken-hearted. Maybe deep down I'm just too much of a moderate myself. I hope for the best. But I expect less.