Dispatches from the Creation Wars

Tidbits from the Newdow Trial

The more I read of Pete Irons’ new book God on Trial the more fascinating little insights I find into the cases he discusses and the people involved in them. There is a chapter about the pledge of allegiance case brought by Michael Newdow and it contains some interesting information. For instance, the two main church/state separation groups, the ACLU and Americans United, were really wishing the case would go away. It was being argued during an election year, which they feared would only help fuel a high turnout for the religious right at the polls. They also had concerns about Newdow himself:

Another factor behind the apprehension of ACLU and AU lawyers was their fear that Newdow could not handle the stress of Supreme Court argument. The justices had granted his request to argue his own case, but he was highly emotional about the custody issue. “It’s hard to concentrate” on the pledge issue, he admitted. “This thing has shattered my life.” The prospect of Newdow’s blowing up at the arguments terrified the ACLU and AU lawyers. “They’re afraid that here’s this guy taking on this important case, and they think he’s a lunatic,” he said. “They may be right.”

The AU lawyers petitioned the court to allow them to split the time for oral argument with Newdow, but he fought them on it and won; he went on to do the oral argument by himself and did a very good job, but not without a great deal of help. Irons and Erwin Chemerinsky had to talk Newdow in to allowing them to edit his brief filed with the court. It was twice as long as the court allows and apparently contained numerous sarcastic and derogatory references to every one of the justices who would hear the case. You don’t to have an MD or a JD (Newdow has both) to know that’s not a good idea.

Then there is this fascinating anecdote from the oral argument itself. Irons flew across country and got in line at 4 am to make sure he got a seat in the Court to hear the argument. He reports:

Newdow answered Souter’s suggestion that the words “under God” in the pledge were “beneath the constitutional radar” by noting the “divisive” response to the Ninth Circuit’s ruling in his favor. “The country went berserk because people were so upset that God was going to be taken out of the Pledge of Allegiance.” Chief Justice Rehnquist leaned forward in his chair. Like a good prosecutor, he asked Newdow a question to which he already knew the answer. “Do we know what the vote was in Congress, apropos of divisiveness, to adopt the under God phrase?” Newdow looked surprised at the question, but answered honestly, like a good witness. “It was apparently unanimous,” he replied. “There was no objection.” Rehnquist leaned back, a smile on his face and his point made. “Well, that doesn’t sound divisive,” he said, as the audience chuckled in appreciation of his debater’s skill. Newdow’s quick response prompted a different audience reaction. “That’s only because no atheist can get elected to public office,” he retorted. At that point, the public section of the chamber erupted in applause, rewarding Newdow for his riposte. Rehnquist looked shocked. Laughter was fine, and often filled the chamber, but applause was a breach of the Court’s decorum. “The courtroom will be cleared if there is any more clapping,” he growled.

The book is full of such anecdotes, which really help animate these cases that we read about in the paper. And I haven’t even gotten to the chapter on the Dover trial yet.


  1. #1 David Durant
    June 29, 2007

    I always learn something new when I come here. Today it was about the Pledge Protection Act (H.R. 2389). I’m rather confused as to whether this is actually law in the US now or failed at some part of the legislative process.


  2. #2 Dave S.
    June 29, 2007

    Looks like it keeps coming up, and is now simmering in the Senate Committee on the Judiciary.

    This bill was proposed in a previous session of Congress. Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven’t passed are cleared from the books. This bill never became law.

  3. #3 Bill Poser
    June 29, 2007

    I wonder whether Rehnquist was too ignorant to realize that the political atmosphere in 1954, when the phrase “under God” was added, was quite different from the present, or whether he knew this perfectly well and was knowingly making a stupid argument? I suspect the latter. If so, that isn’t conservatism or orignalism, its dishonesty.

  4. #4 Callandor
    June 30, 2007

    Rehnquist’s argument in the case for the merits of keeping the phrase in the Pledge I thought were utter bullshit (not a legal expert by ANY means, just a citizen who can read). Basically just searching for any examples where god was mentioned by presidents, saying our coins and money had In God We Trust stamped on them, and that the Court seasons had been opened with a call to god for a long time. Then he simply declared that “under god” wasn’t a religious establishment.

    Really a jumble of non-reasons given, with a fiat mixed in.

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