In 2000, Michael Newdow filed suit against his daughter’s school. In 2002, he lost custody of his daughter. In 2004, the Supreme Court heard the case. They dismissed it because he did not have full custody.

The five ‘liberal’ justices you would have expected to vote for Newdow voted to toss his case. The four ‘conservatives’ you would have expected to vote against him ruled he could be heard. And it would seem they were right. The case was an important issue, it had good representation on both sides, it had found its way to the nation’s highest court, and they throw it out on a technicality invented for the occasion.

One justice, arch-conservative Justice Thomas, went farther. He said the Ninth Circuit was right — they should have restored the pledge. He did not say this lightly or to help his argument; he said it after serious consideration. “I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.”

But then he went further. There should be no wall between Church and State, he said. The First Amendment’s rule that “Congress shall make no law respecting an establishment of religion,” is pretty much meaningless. Government can start a religion, it can use your tax money to pay for it, it can do just about everything short of throwing you in jail if you don’t show up on Sundays.

When two judges on the Ninth Circuit removed two words added to the pledge in 1950, the world went crazy. It was front page news across America, TV pundits called it crazy, the Congress sang “God Bless America”. But when one Supreme Court Justice removed five key words from our own Constitution, nobody noticed.


In 2002, the US “captured” citzen Jose Padilla, a Chicago former gang member, and held him as a “material witness” in New York. His appointed lawyer sued there for his release, but before his case could be heard, the government threw him in a Naval Brig in South Carolina, where they reportedly tortured him for information about Al-Qaeda. His lawyer challenged this too. In 2004, the Supreme Court heard the case. They dismissed it because it was filed in New York, not South Carolina.

The five ‘conservative’ justices, four of which previously voted against dismissing a case on a technicality, voted to dismiss it. The four ‘liberals’ ruled he should be heard. It was an important case, it was before the nation’s highest court, which made rules for both New York and South Carolina, and it was thrown out for silly reasons.

One justice, arch-conservative Justice Thomas, went further. The President “very well may have inherent authority to detain those arrayed against our troops”. (In other words, he can capture whoever he wants even without Congress’s permission.) He also has “an authority that includes making virtually conclusive factual findings” and the courts “lack the capacity and responsibility to second-guess [his] determination.” (In other words, he can decide who should be captured and the courts can’t question him.)

Thomas was the only Justice who held this way. On that issue, the Court was 8-1. Some people suggest Justice Thomas simply votes however Justice Scalia does. But that was surely not the case here. Justice Scalia went crazy, voting with the court’s most liberal member, Justice Stevens. The President could not capture people without Congressional permission, he said. He could not capture people with Congressional permission. The only way he could capture people was if the Congress and he suspended the writ of habeus corpus.

Justice Thomas was again way out there in the blue.

posted June 28, 2004 01:34 PM (Politics) (5 comments) #

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Justice Thomas and the Case-Dodgers
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Why Ralph Runs
What is going on at the Supreme Court?
Four Myths About Politics
Fahrenheit 9/11 Transcript: The Saudi Flights

Comments

I absolutely agree with you.

For further comments, see, for example, Brad DeLong among others, who says “It is … deeply, deeply disturbing that three justices believe that Guantanamo Bay is a lawless place—that no matter what is done there, no court anywhere has jurisdiction. That any of those three is a judge is a great mistake, and I hope the price we will have to pay for this mistake won’t mount any higher than it already has.”

Michael Froomkin of Discourse.net also useful comments.

posted by Russ Abbott at June 28, 2004 02:09 PM #

But then he went further. There should be no wall between Church and State, he said.

He did not. He said the existing wall was not supported by the Constitution, not that there should be no wall. He firmly asserted the Free Exercise wall.

The First Amendment’s rule that “Congress shall make no law respecting an establishment of religion,” is pretty much meaningless.

He did not say any such thing. In fact, he asserted that the words mean what they say, rather than the currently common belief that they apply to more than just Congress.

Government can start a religion, it can use your tax money to pay for it, it can do just about everything short of throwing you in jail if you don’t show up on Sundays.

He comes to no such conclusion, but merely posits the possibility, and says he “would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States.”

Then he goes on in the footnotes: “It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause,” and “Again, coercive government preferences might also implicate the Free Exercise Clause and are perhaps better analyzed in that framework.”

I saw Thomas’ decision as a well-reasoned first step in inching back from the insane lengths we’ve gone beyond the Constitution in removing religion from civil life.

posted by pudge at June 29, 2004 07:05 PM #

In other words, he can capture whoever he wants even without Congress’s permission.

In wartime, yes. Any general can capture anyone on the battlefield without Congressional permission. The President has at least as much authority as any general.

Note that Thomas voted today against COPA, and Breyer for it! I think those two are just fucking with us. :-)

posted by pudge at June 29, 2004 07:11 PM #

Oh, you already made the note about Breyer/Thomas re COPA, and had a similar thought re: fucking with us. :)

posted by pudge at June 29, 2004 07:13 PM #

I don’t see how the free exercise clause can seriously be considered a wall between church and state. A condom, maybe.

posted by Aaron Swartz at June 29, 2004 07:15 PM #

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