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June 16, 2004

While many people are celebrating the Supreme Court's decision on Monday to dismiss a lower-court ruling that deemed as unconstitutional the phrase "under God" in the Pledge of Allegiance, some of the leading warriors in the fight are not that happy about the route the justices took.

The two-word phrase is secure in the Pledge -- for now -- after the high court ruled 8-0 that Michael Newdow, the plaintiff in the case, had no standing in the case he launched on behalf of his daughter because he does not have custody of the young child. The California atheist had challenged the inclusion of "under God," which was added to the oath in 1954 by Congress.

But in a surprise move, Justice Antonin Scalia recused himself from the case...Michael A. Newdow, the atheist opponent of the pledge who is acting as his own lawyer, filed papers Sept. 9 with the Supreme Court, asking Scalia to bow out because the justice had spoken critically of the 9th Circuit ruling at a Religious Freedom Day event Jan. 12 in Fredericksburg.

On that occasion, Scalia cited the 9th Circuit decision as an example of what he considered mistaken attempts to "exclude God from the public forums and from political life."

Newdow, of California, argued that this violated the code of conduct for United States judges, which says that "a judge should avoid public comment on the merits of a pending or impending action."

"Under such circumstances . . . one might reasonably question his impartiality," Newdow wrote.

Legal analysts said that, if Scalia's recusal was prompted by his comments, it would be an extremely rare occurrence on a court whose justices generally avoid even indirect public references to possible cases.

I'll say it's a surprise! Hell Scalia won't recuse himself after he's slept with the primaries in a case. We all know what happens on those hunting trips.