The pledge case itself may turn out to be a minor distraction. California’s Ninth Circuit, one of the nation’s most liberal courts, is also one of the most overturned–and its pledge decision is almost certain to be reversed down the road. But lost in the tumult over the ruling was a simple fact that helps to illuminate the larger dissatisfaction with the courts: as much as the ruling overreached, the California court was clearly taking its cues from a higher authority–the U. S. Supreme Court.
The California judges’ condemnation of the words “under God” in the pledge was in fact a perfectly plausible reading of several recent Supreme Court precedents, which have contained sweeping denunciations of government-sanctioned bows to religion. Two years ago the Supreme Court used similar language when it ruled, 6-3, that student-led prayers at high-school graduations and football games have “the improper effect of coercing those present to participate in an act of religious worship”–even though nobody was required to go to the games or join in the prayers. In that case, the two centrist justices joined the four liberals, and their opinion suggested that prayers would be unconstitutional even if students approved them without encouragement from school officials.
Does that mean the Supremes will uphold the California ruling if the case eventually reaches them? Not likely. Various Supreme Court justices, including a majority of the current nine, have suggested that nothing in the Constitution requires “under God” to be deleted from the pledge.
But whatever the eventual outcome in the pledge case, the Supreme Court’s tendency to seed its own rulings with loose rhetoric has certainly tempted adventurous lower-court judges to issue decisions that infuriate most Americans. This only plays into the hands of administration officials who believe the courts lack common sense.
This disdain for judges, and for what Bush calls “legalisms,” comes naturally to a president who saw his election victory almost snatched away by the liberal Florida Supreme Court. So it is no surprise that a trademark of the Bush war against terrorism has been a push to insulate his policies from judicial review. In his order last November authorizing special military commissions to detain and try noncitizens suspected of terrorism, Bush explicitly provided that suspects could not “seek any remedy” in “any court of the United States.”
Bush has run into scattered judicial resistance to the secretive detentions of noncitizens arrested in the post-September 11 dragnet. A federal judge in Manhattan rejected the administration’s use of the “material witness” law to detain people charged with no crime or immigration violation. Other judges have challenged the legality of the blanket secrecy policy; one ordered that deportation hearings be opened immediately, despite a Justice Department claim that that this would provide critical information to terrorists. (The Supreme Court has suspended that order, allowing the government to maintain the secrecy while it appeals the lower court’s decision.)
Impatient with the need to satisfy the courts, Bush has invoked his commander-in-chief powers in an effort to block meaningful judicial review in the cases of two detained U.S. citizens suspected of Al Qaeda connections–Yaser Esam Hamdi, who was captured in Afghanistan, and Jose Padilla, arrested in Chicago on suspicion of plotting a “dirty bomb” attack. In the Hamdi case, the administration made a sweeping challenge to the court’s power, arguing that the courts “may not second-guess” the U.S. military’s decision to classify a suspect as an “enemy combatant”–even though the designation leads to indefinite incarceration. Officials also argued against letting Hamdi see a lawyer, which they say would interfere with efforts to interrogate him.
Clearly, Bush is testing just how far he can go in bypassing the courts–and judicial rulings that offend most Americans only help his cause. If judges hope to stop a popular wartime president from robbing them of their power, they’ll need to win the support of the Congress, and the public. Attacking the Pledge of Allegiance probably wasn’t the best way to start.
