Trevor Morrison (Law, Cornell) has written with some extremely interesting and informative remarks about Justice Thomas's opinion in the Pledge case; he has kindly given me permission to share them:
I just read your comments on the Court's "dodge" in Newdow, and thought I'd write with a follow-up thought. You note that by arguing the Establishment Clause shouldn't apply to the States, Justice Thomas "solidif[ied] his status on the lunatic fringe." I quite agree that much of Justice Thomas' opinion, like so many others by him, marks him as rather removed from the Court's intellectual mainstream. But in this case, I think you've missed the most significant aspect of Thomas' opinion.
Let me explain (and apologies for the lengthy nature of what follows). Before arguing that the Pledge should be upheld because the Establishment Clause should not apply, Thomas' opinion discusses how the issue should be resolved under the Court's current precedents. Specifically, he examines Lee v. Weisman, 505 U.S. 577 (1992), which held, inter alia, that the Establishment Clause prohibits "coercive" state action relating to religion. Having done that, Thomas "conclude[s] that, as a matter of our precedent [i.e., Lee v. Weisman], the Pledge policy is unconstitutional." Slip op. at 5. This isn't a problem for Thomas, as he thinks Lee v. Weisman was wrongly decided. See id. But I think it is extremely significant for our understanding of the lower court's decision to hold the Pledge unconstitutional.
As you know, the lower court decision came from the Ninth Circuit. Conservatives in the White House, on the Hill, and elsewhere lambasted the decision as yet another decision by what they charge is an impermissibly liberal court. President Bush, e.g., called the Ninth Circuit's decision "ridiculous." Senator Hatch called it an "outrageous example of judicial activism and overreaching," and charged that it "further place[d] the Ninth Circuit out of the mainstream of both American law and culture." He further stated that the decision "clearly demonstrates why the Supreme Court overturns this Circuit's opinions more often than any other Circuit."
These same conservatives consistently praise Justice Thomas -- by any measure one of the two most conservative judges on the Court -- as the very model of an ideal jurist. President Bush has said repeatedly that he wants to fill the federal courts with more judges like Thomas and Scalia. Hatch is one of Thomas' biggest fans, and routinely champions him as an ideal "strict constructionist."
Well, the ideal conservative jurist has just concluded that the Ninth Circuit was right in Newdow. Lower courts have no power to overrule Supreme Court precedent, and the Court has repeatedly warned lower courts to avoid attempting to guess whether certain Supreme Court precedents are no longer favored by the Court itself. If Supreme Court precedent dictates a particular outcome, lower courts must apply that precedent and arrive at that outcome. When the Supreme Court reviews the case it may decide to abandon its precedent, but if the lower court's decision was consistent with then-existing precedent, one cannot really call the decision wrong, much less "ridiculous" or "outrageous." And it certainly isn't "out of the mainstream" to follow Supreme Court precedent. According to Thomas, that's all the Ninth Circuit did in Newdow: follow existing Supreme Court precedent and properly strike down the Pledge on that basis.
So Thomas' opinion suggests that Bush, Hatch, et al. must either consider Thomas' constitutional reasoning "ridiculous," "outrageous," and "out of the mainstream," or concede that reasonable jurists can go either way in determining what Supreme Court precedent dictates with regard to the Pledge. Like you, I'm inclined to think that an honest application of Establishment Clause doctrine compels the conclusion that the Pledge is unconstitutional, at least when recited in elementary school classrooms. My aim here is not to argue the merits of that point, but to say that Thomas' opinion in Newdow reveals the conservative condemnations of the Ninth Circuit's decision to be far more overheated political rhetoric than honest constitutional reasoning.
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