Dispatches from the Creation Wars

Why I Prefer Judges to Legislators

Despite the recent bad decisions from the Supreme Court, I still much prefer the judicial branch to either the executive or legislative, for one basic reason: judges (at least at the Federal level, where they are appointed for life) do not have to pander to the least educated and most hyper-emotional members of society in order to keep their job. A perfect example of this can be found in Pete Irons’ new book, God on Trial, in discussing the Michael Newdow lawsuit over “under God” in the pledge of allegiance. His initial district court case was dismissed but he won the appeal with a three judge panel consisting of one liberal judge (Judge Reinhardt), one conservative judge (Judge Fernandez) and one judge who was considered an unpredictable maverick (Judge Goodwin). Goodwin ended up writing the majority opinion for himself and Reinhardt (full ruling here), declaring that the phrase “under God” in the pledge of allegiance was a violation of the Establishment clause.

The legal standard for the ruling was quite clear given the Lemon test, which requires that a law have a clear and primary secular purpose and effect. A law that is passed solely for religious purposes and that has the effect of endorsing or advancing religion violates the establishment clause and there is simply no question that the 1954 law that added “under God” to the pledge of allegiance had an exclusively religious purpose and effect. Judge Goodwin’s opinion in his ruling on the standing issue is eloquent and compelling:

When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized “under God.” While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view. The pledge to a nation “under God,” with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom. Just as the foundational principle of the Freedom of Speech Clause in the First Amendment tolerates unpopular and even despised ideas, see Cohen v. California, 403 U.S. 15 (1971), so does the principle underlying the Establishment Clause protect unpopular and despised minorities from government sponsored religious orthodoxy tied to government services.

The court also noted that no matter which Supreme Court test one applies, the law here fails the test. There was a clearly religious purpose and effect, a clear government endorsement of religion and the coercive nature of the social pressure on a child to recite the pledge or risk being shunned and abused by one’s classmates. Again, the arguments are eloquent and compelling:

In the context of the Pledge, the statement that the United States is a nation “under God” is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation “under God” is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase “one nation under God” in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and — since 1954 — monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we
are a nation “under God” is identical, for Establishment Clause purposes, to a profession that we are a nation “under
Jesus,” a nation “under Vishnu,” a nation”under Zeus,” or a nation “under no god,” because none of these professions can be neutral with respect to religion…

The Supreme Court recognized the normative and ideological nature of the Pledge in Barnette, 319 U.S. 624. There, the Court held unconstitutional a school district’s wartime policy of punishing students who refused to recite the Pledge and salute the flag. Id. at 642. The Court noted that the school district was compelling the students “to declare a belief,” id. at 631, and “requir[ing] the individual to communicate by word and sign his acceptance of the political ideas [the flag] . . .bespeaks,” id. at 633. “[T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.” Id. The Court emphasized that the political concepts articulated in the Pledge were idealistic, not descriptive: ” `[L]iberty and justice for all,’ if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement.” Id. at 634 n.14. The Court concluded that: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

So what was the legislative response to this ruling? Nothing short of a complete freakout by representatives of both parties. What follows is from Irons’ book:

Politicians of both parties were less restrained in their rhetoric. Speaking to reporters during a trip to Canada, President George W. Bush called the decision “ridiculous.”…Senate Majority Leader Tom Daschle, a South Dakota democrat, derided the decision as “nuts,” and his colleagues promptly adopted a resolution – passed unanimously with every senator listed as a sponsor – condemning the ruling. Senator Robert Byrd, a West Virginia Democrat and that body’s senior member, blasted Goodwin as a “stupid judge” and an “atheist lawyer.” Not to be outdone, the House of Representatives voted by a margin of 416-3 for a resolution that declared: “The Pledge of Allegiance, including the phrase, ‘One Nation, under God,’ reflects the historical fact that a belief in God permeated the founding and development of our nation.”

Astonishing, isn’t it? Even those allegedly “anti-religious liberals” could not find even a small handful of legislators to support the court’s ruling. Why? Because they are forced to pander to the most ignorant and credulous elements of our society, those who respond with great emotional fury to any suggestion that they not be allowed to use the power of government to prop up their religious beliefs. And Judge Goodwin just became one of my heroes for the way he responded to all of th

On his part, Goodwin brushed off the bashing. “I never had much confidence in the attention span of elected officials for any kind of deep thinking about important issues,” he said of his congressional critics. “When they pop off after what I call a bumper strip headline, they almost always give a superficial response.” Goodwin was equally dismissive of Bush’s denunciation: “I’m a little disappointed in our chief executive – who nobody ever accused of being a deep thinker – for popping off.”

This is why I have so much more respect for, and interest in, judges rather than legislators. They can speak the truth, something legislators simply can’t do if they want to remain in office. Their job requires them to apply intellectual analysis rather than electoral analysis and the difference is stark.


  1. #1 Steven
    June 27, 2007

    Ed, what do you think about term limits?

  2. #2 Robert
    June 27, 2007

    For the most part I am very impressed with our judges. It is a little frightening when a wacko gets in there (Pearson anyone? Howabout Moore?). But overall I think our judicial branch is the one we should be the proudest of.

    Of course most people aren’t, but then most people are boobs.

  3. #3 Fastlane
    June 27, 2007

    I’m not Ed, but I’ve been all for term limits for a while now.

    I’d change the current limit on the executive branch, and make a 12 year term limit for BOTH houses of congress, and the same for the executive branch, with any particular office counting as a separate term.

    This means, that at most, one could spend 48 years in an elected federal position. 12 years each in teh house and senate, and 12 years each as president and vice president.

    I would like to find a way to balance the selection of justices, but haven’t come up with a better system yet.

    Of course, I think we should change the house and senate (and VP??) such that half the positions are elelcted, and half the positions are drafted. Yeah, it would be chaotic at first, but I think we might actually come close to having a government that represents tha actual people of the country. I would love to try something like this at a state or county level, but I think it might only work at a federal level, because of the (lack of) pay at lower levels of government.

    Not many people would pass up the $100k+/year salary.


  4. #4 steven
    June 27, 2007

    Thanks for your comments, Fastiane. Actually, I would prefer a one term limit for any elected offical. Increase the two year term of a representative to, say, four or six years, but limit them to one term.

    But I would be interested to hear what Ed has to say.

  5. #5 Ed Brayton
    June 27, 2007

    I oppose term limits for both elected positions and judges. In the case of the former, I think it is simply laziness; we want to create an artificial means of doing what we already have the power to do – vote them out. And I can tell you without hesitation that at the state level, where there are term limits in many states, the effect has been to transfer power from the legislators, who are typically clueless on how the system works for the first few years, to the lobbyists and bureaucrats, who know how to work the system. As far as judges go, lifetime appointments is one of the key ways that we assure judicial independence.

  6. #6 dogmeatib
    June 27, 2007

    I agree with Ed. Term limits for legislative seats are a bad idea. Reps are pretty useless for their first terms because they barely know how things work. See Mr. Smith Goes to Washington for what is actually a pretty good example (minus Cloture).

    I think you would accomplish a lot of what term limit people want by doing away with the two party system and instituting a European style parliamentary system (minus the PM element). With multiple parties you’d see a much larger number of voters become interested. Today’s Republicans and Democrats don’t represent the needs/wishes of their constituents, and really, many of them don’t care. If you don’t like what the Democrats are doing, what are you going to do, vote Republican? No, so perhaps you’ll vote Nader …whoops, look what happened in 2000. That’s why you end up with 60% turnout for Presidential elections and 30-40% turnout for Congressional elections.

    The judicial tends to be a bit conservative for me, but again I agree with Ed. Do you think Jones would have decided the way he did in Kitzmiller v. Dover if he was looking to be reelected? Not bloody likely. But when the judicial botches it, they do so very badly, Dredd Scott v. Sanford, Plessy v. Ferguson, etc.

  7. #7 Morat20
    June 27, 2007

    Didn’t SCOTUS duck this case on the standings issue?

  8. #8 Ed Brayton
    June 27, 2007


    Yes, they ruled that he didn’t have standing. It’s now been refiled with different plaintiffs.

  9. #9 Morat20
    June 27, 2007

    I thought so — I remember reading the original 9th decision and realizing it left SCOTUS nowhere to go.

    The authors had very clearly, firmly, and decisively applied precedent. A reversal pretty much forces SCOTUS to decisvely chunk precedent (quite a bit — the 9th reached back pretty far), create a Pledge-shaped loophole (another “This decision good for one time only” call), or keep ducking it.

    SCOTUS has gotten pretty good at ducking, lately. Lawrence is one of the few decisions I can recall of the last decade that really seemed to stand out. There were other, more critical decisions given the context of current events, but mostly the Court has seemed content to poke around the grey edges — more of a “series of tiny rips” mentality, than a “one big jerk” mindset.

  10. #10 Jesus
    June 27, 2007

    Yes, it was judges that took away our eminent domain rights.

  11. #11 James
    June 28, 2007

    The upside of democracy is that the government is accoutnable to the people.

    The downside of democracy is that the government is accoutnable to the people.

    Unfortunately there’s not much we can do abaout it. Still, judicial review of the legislature and executive is a good thing to have. Pitty we don’t have it in New Zealand 🙁

  12. #12 Mike
    June 28, 2007

    There is one aspect of the judiciary which really bothers me and was displayed in the Kelo decision a few years ago. Of all the justices on that decision, Thomas’ opinion brought the problem of decision being continually based on precedent rather than the Constitution. Keeping precedents is theory is good as it ensures stability. However, the precedents build upon each other, either further to the left or the right, then eventually the decision will have no Constitutional basis under them.

  13. #13 lauram
    June 29, 2007

    One word refutation: Scalia.

    Panders with the best of ’em to the lowest common demon-omitter.

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