It was big news in October. Papers across the country carried a story from the Associated Press (AP) that said the Supreme Court “will decide if the regular morning classroom salute to the American flag is unconstitutional because of the reference to God.” The story said the court made an announcement that Justice Scalia recused himself from this case, that he would be nothing more than a “spectator.”

Was the story accurate? Will the Supreme Court decide whether the morning salute is constitutional? Will Justice Scalia sit (quietly) on the sidelines? Or were these claims overly dramatic? Did Gina Holland, the person who wrote that story, make it seem more than it really was?

Remember, it was just a few months ago that the AP issued a story that made folks wonder about its commitment to telling it like it is. The Supreme Court had just issued its ruling in Lawrence v. Texas, a case that asked whether anti-sodomy laws were constitutional. The court ruled that they weren’t, that they were an unconstitutional invasion of privacy. Justice Scalia – the conservative justice so well aware that the Constitution doesn’t contain a right to privacy – dissented. He said the court had pretty much “signed on to the so-called homosexual agenda.” That AP story quoted Justice Scalia like this:

“The court has taken sides in the culture war,” Scalia said, adding that he has “nothing against homosexuals.”

That quote was widely reported by papers across the nation and by major news outlets, including ABC and CNN, but it turned out to be very far from accurate. What Scalia really said was this:

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”

That AP story put words in the justice’s mouth. It said he said something he didn’t say. So it’s not unreasonable to ask whether Ms. Holland’s story was entirely accurate.

Here’s what happened. On 14 October, an entry was made in the docket to case 02-1624, the case of Elk Grove Unified School District v. Michael Newdow. Here’s the entry:

Petition GRANTED limited to the following Questions:

1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance.

2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment.

The Solicitor General is invited to file a brief in this case on behalf of the United States. Justice Scalia took no part in the consideration or decision of these motions and this petition.

That’s it. That’s all that happened. The next day, papers ran Ms. Holland’s story describing what happened. Question is: was Ms. Holland’s description of the event accurate?

First, consider Ms. Holland’s claim that Justice Scalia will be nothing more than a spectator. The docket entry says Scalia didn’t participate in the decision to grant cert (granting certiori is the court’s way of saying it will hear a case). Neither did he consider any of the motions that were made before the court decided to hear this case. But does that mean he’s disqualified, or recused himself from the case, as Holland’s story claimed?

Even though Justice Scalia didn’t participate in the decision to grant cert, he didn’t say he’d recused himself. So, then why did Ms. Holland (and every other reporter who based a story on hers) say he had? Why did she tell us he’d decided not to participate at all, that he’d be sitting on the sidelines when the Supreme Court decides such a controversial issue, an issue that Justice Scalia seems so passionate about? Did she just make that up for effect?

No. She based her conclusion (or her speculation) on solid ground: the often strange and mysterious workings of the Supreme Court.

According to federal law, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Did it seem as if Justice Scalia might not be impartial in the Pledge case?

It certainly seemed that way to Michael Newdow, the quirky atheist who leads an independent campaign to get religion out of government, to get our national motto taken off of our money, to stop religious invocations at public ceremonies, to put an end to chaplains who get paid from public coffers. He’s the man who brought the case against the Pledge to court.

After the Supreme Court agree to hear the case, Newdow sent a letter to the court suggesting that it might be a good idea for Justice Scalia to sit this one out. But why? What reason could there be for the judge not to participate in this case?

Consider this bit of advice from the Code of Conduct for United States Judges:

A judge should avoid public comment on the merits of a pending or impending action . . . .

Justice Scalia ignored that advice when he appeared as the featured speaker at this year’s Religious Freedom Day celebration, a guest of the Knights of Columbus, an organization that was instrumental in getting under God inserted into the Pledge of Allegiance 50 years ago. Even though it was well known that the Pledge case was headed to the Supreme Court, Scalia offered his opinion of it, and his opinion was popular with the small crowd that had assembled to celebrate. Scalia ridiculed the notion of a ‘wall of separation’ between church and state. The crowd cheered. He said the separation idea was a misguided notion, one that the court mistakenly adopted despite what the Founders really, clearly intended. “The establishment clause was once well understood not to exclude God from the public forum,” he told the cheering crowd.

He repeated his longstanding criticism of the court: it had taken license with the Constitution, interpreting it rather than applying it. “It is a Constitution that morphs. . . . Whatever we think it ought to mean it means, and that new meaning will be imposed on our citizens coast to coast.” He said that previous Supreme Court decisions – decisions based on that bad metaphor of a ‘wall of separation’ – gave the appeals court some plausible reason for coming up with its outrageous ruling that adding under God to the Pledge was unconstitutional.

Scalia interrupted his prepared remarks. He pointed to a man holding a sign that said “Get Religion out of Government.” He told the crowd, “If the gentleman holding the sign would persuade all of you of that, then we could eliminate under God from the Pledge of Allegiance.” The implication was clear: it is public opinion that should decide what’s allowed, not some court that doesn’t understand the Constitution (even though polls show that less than 10% of the public can say what rights are guaranteed by the First Amendment, and nearly half of us believe the First Amendment “ goes too far”).

Since Scalia made it clear he thought the appeals court’s ruling was wrong, since he reached his decision before hearing the case, and since his comments were made at a rally sponsored by the very organization that led the drive to put under God in the Pledge back in the 1950s – it was clear to Newdow that Scalia would not be impartial. And so Newdow did what most lawyers wouldn’t dare: he sent a letter to the court suggesting that Scalia recuse himself from the case.

Unlike judges in the lower courts, no one can tell a Supreme Court justice that he or she is being taken off a case. Each member of the high court has sole discretion in deciding whether to participate in a case or not, no matter what he or she may have said about matters concerning the case, or about the parties to the case, or the case itself. Even if a justice is related to one of the parties in a case, or has a huge stake in the outcome of a case, it’s entirely up to that justice to decide whether or not to participate in the case.

It’s not uncommon for a member of the Supreme Court to recuse him- or herself from a case. It happens all the time, most often when it seems as if there might be some financial incentive for a judge to rule this way or that. Take Justice Sandra Day O’Connor, for example. According to her financial disclosure statement, she (or someone in her immediate family) owns stock in various corporations. When one of those corporations is involved in a case that comes before the Supreme Court, O’Connor doesn’t participate. That way, no one can say that she voted as she did for financial gain.

Even though the federal law that says a judge shouldn’t hear a case in which her “impartiality might reasonably be questioned” doesn’t apply to Supreme Court justices, she recuses herself, it seems, in order to maintain the court’s high reputation. (Recall the hit the court took when Justice Scalia didn’t recuse himself from deciding the winner of the 2000 Presidential election. His son-in-law got his paycheck from a law firm involved in the case, a firm working hard to get the court to announce George Bush the winner. And Justice Thomas’ wife worked for an outfit that would help staff a Bush administration if Bush was announced the winner. Their votes in favor of Bush left many Gore supporters feeling that these two justices didn’t care about being fair.)

How does Justice O’Connor go about recusing herself? Does she issue a statement? Does she explain why she’s recusing herself? Does she tell a clerk to enter it in the case docket? No, she just doesn’t participate in the decision to grant cert, and the docket reads “O’Connor OUT.” Reporters who cover the court review her financial statement and conclude, “Oh, she’s got stock in AT&T. So she’s sitting this one out.”

In this case, Ms. Holland interpreted “Justice Scalia took no part in the decision” to mean that Justice Scalia had recused himself. What she didn’t conclude was that Justice Scalia had only decided not to participate in the decision to hear the case. Why? Because at the Religious Freedom Day celebration, he made it clear that he thought this case shouldn’t be heard; he suggested he would rule against hearing this case before he even looked at the petition for certiorari.

That he didn’t participate in the decision to hear this case doesn’t mean Justice Scalia plans to sit on the sidelines. It doesn’t meant that at all. Fact is: we don’t know whether Justice Scalia will participate in this case or not. If he wants to, he can, and no one can tell him he can’t.

Look again at the docket entry from 14 October and notice that the court said it will consider two questions, the first being whether Newdow had standing to bring the case to court. If the court doesn’t agree with the appeals court that Newdow had standing, then it won’t even consider the second question: whether the “regular morning classroom salute” is constitutional.

Before a court considers a lawsuit, it asks whether the party bringing the suit has standing. To have standing, that party has got to show the court that it’s suffering (or is about to suffer) an injury caused by the party being sued. The party bringing the suit has got to show some actual or imminent “invasion of a legally protected interest” due to the party being sued.

Did Michael Newdow have standing to bring suit? Newdow offered several reasons why he had standing (even though two courts had previously ruled that he didn’t). One was that, since he had a daughter in school, he regularly attended school board meetings. Those meetings began with the Pledge and Newdow said that made him – an Atheist – an outsider. To join his fellow citizens in expressing allegiance to his country, he had to express a religious belief he denies (that the U.S. is a nation under God, whatever that means).

Another reason he offered was this: expecting youngsters to say that they live in a nation under God – and having them do it day after day after day – was state-sponsored religious indoctrination. Exposing his daughter to the regular morning salute violated the Establishment Clause. Even though a federal district court didn’t buy any of this, the appeals court did. The appeals court decided that Newdow had standing because the school district was interfering with his right to direct the religious upbringing of his daughter.

Was that a good reason? Newdow never married the girl’s mother. The girl’s mother is a Sunday school teacher and she claims the girl is happy to say the Pledge just as it is. When the appeals court issued its ruling, the mother had sole custody of the child. Since then, the mother – who’s being represented by Kenneth Starr, famous for finding oral sex in the oval office – has asked the Supreme Court to rule that Newdow has no standing in this matter. The girl’s religious upbringing is up to the mother.

This is where things get complicated. When the appeals court issued its original ruling (June 2002) it was unaware that a state court had awarded the mother ‘sole legal custody’ of the girl some four months earlier. That came to the court’s attention later, after the mother challenged Newdow’s standing. The appeals court then considered this question: “Does the grant of sole legal custody to Banning [the mother] deprive Newdow, as a noncustodial parent, of Article III standing to object to unconstitutional government action affecting his child?” The court concluded that “Newdow retains sufficient parental rights to support his standing here.”

The gist of it is that a federal appeals court decided an important question of state law: what right does a non-custodial parent have to control the religious upbringing of a child against the wishes of the custodial parent? The Supreme Court has never decided this question and it’s not going to in this case (according to the docket, it’s going to consider Newdow’s standing, not California’s family laws).

What it’s going to do, most likely, is say that Newdow’s standing is a matter for the California courts to decide. And if that’s the case, then it won’t even bother to consider the second question.

Justice Scalia sees it. He sees that the court isn’t going to settle the first question and that it’s not even going to consider the second question. If, for some reason, it does consider that second question, look for Justice Scalia to become fully involved in this case, whatever Ms. Holland says.

About the Author: Mister Thorne is a mathematics editor living in San Francisco. To contact him, send e-mail to lyricalreckoner@yahoo.com.

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