Thursday, March 11, 2010

Our Activist 9th Circuit

As pointed out by a reader, the Ninth Circuit has published its decision in Newdow v. Rio Linda Union School District. In an opinion by Judge Bea, the court upheld the use of the words "under God" in the pledge of allegiance. Judge Reinhardt wrote a blistering dissent.

Astute court-watchers will remember that the Judge Reinholdardt was the author of the 9th Circuit's 2002 ruling, which reached the opposite result. That decision was appealed to the Supreme Court, which used standing as an excuse to overturn the decision.

Judge Reinhardt has long been used as the Right's exemplar of an activist judge. But after skimming both the opinion and the dissent, it seems to me that Judge Bea is the one who is straining in order to reach a preordained result. As the dissent correctly points out, the issue in this case isn't the pledge as a whole, but the specific 1954 alteration--whose religious purpose was to insert a theistic profession into what was hitherto a purely secular and patriotic affirmation.

"Activist judge" is one of the terms I really dislike. It reminds me of one definition of an alcoholic: a person you don't like who drinks as much as you do. If the accusation is that judges modify their adjudications in light of political or pragmatic considerations, at least it's fully clear that this goes both ways.

That being said, it's hard to imagine the circus that would have arisen if the 9th Circuit again reached its earlier result. To the extent to which appellate courts are able to pick and choose their battles (which is debatable), I would prefer they do so in areas that have a more meaningful impact on the lives of ordinary people.



Blogger Matt said...

It's always alarming (and disappointing) to me when those in the legal community dismissively undervalue the stakes in decisions like these. It's especially unsettling when that undervaluation is accompanied by the suggestion that these are the types of battles the courts should sidestep so as to preserve the real judicial muscle-flexing for the important issues that affect "ordinary people." I would have thought anyone with a legal education would appreciate that the incremental erosion of the principles that form the foundation of our government and our society is just as dangerous (if not more--the fundamental stuff like this is where the judiciary can most effectively exercise its power) to all Americans' lives. If the courts don't take a stand here, no other actor will. This decision is profoundly important, and profoundly wrong.

3/11/2010 5:31 PM  
Blogger Carbolic said...

Wow, Matt--such passion! I have a legal education, so I feel appropriately chastened. Although, since the pledge was amended more than 50 years ago, and we haven't fallen into a complete theocracy yet, so the erosion of our principles is incremental, indeed.

Quite the opposite, in fact. Over the last 50 years, we have moved to a pluralistic society in which many beliefs--including agnosticism and atheism--are tolerated. Obviously, this is moving faster in some parts of the country than others, but it is still happening.

The pledge wording is a reactionary issue. it is most important for those that are trying to move their communities back to the pre-pluralistic days of the 1950s. These people are swimming against the cultural tide. They are the ones that are probably most disappointed with this ruling, as they've been denied an "outrageous" opinion that they could use to stir up public opinion.

In the end, the power of the court is in their persuasiveness. They don't have the ability to squelch the opinion that patriotism requires a particular religious view. Fortunately, they don't have to, because that idea is dissolving on its own. Instead, I would rather courts focus on issues in which they really can make a bigger impact.

3/11/2010 10:54 PM  
Blogger Carbolic said...

Also, I don't buy your argument that "If the courts don't take a stand here, no actor will."

Agnostics aren't a discrete and insular minority that is excluded from the political process (at least, not anymore). There's no reason why a change back to the secular pledge of allegiance can't be accomplished through the ordinary political system.

3/11/2010 10:58 PM  
Blogger Matt said...

You’re right about the passion part, but I didn’t mean my comments as a slight against you. I apologize for the justified inference that I did.

Courts rely on their persuasive power in the meta-sense that their institutional legitimacy is measured by how well their decisions are grounded in reason. But the decisions themselves have independent power. Your observation that intolerance of unpopular viewpoints is “dissolving” is accurate, but it ignores that the courts have themselves played a significant (if not determinative) role in that evolution. Had they acted consistently with your suggestion and abdicated, I’m not at all confident we’d be as “tolerant” as we are today. Forcing tolerance on people has a way of producing succeeding generations of tolerant people.

And yes, because there aren’t that many atheists, it goes without saying that there are issues having an impact that is more widely distributed. That’s beside the point. It’s not the number of people who are affected by this issue. It’s the type of people, and that type is a minority that the judiciary is particularly situated to protect. To the atheist mother whose child is told by her school and asked to affirm personally that her mom is wrong, it’s no great comfort that some of the more widely held unconventional beliefs are slowly gaining acceptance in society.

Finally, I can’t imagine where you get the impression that atheists or agnostics are suddenly part of the political mainstream. I’d say they fall right into the “discrete and insular minority” category, and I’d be very surprised if you could find a single (avowed) atheist elected to any legislative body in the country. Much more to the point, even if there are legislators who don’t profess any religious beliefs, to vote for an anti-religious measure like taking God out of the pledge would be political suicide for any of them. I’m not even sure they could get away with it here in Berkeley.

You might be right in your assessment of the current cultural tide, but whatever its direction, it ebbs and flows like any other. I’m comforted that our constitutional structure provides protection to those who happen to be around during the ebb.

3/12/2010 12:29 AM  
Anonymous Anonymous said...

Does anyone who still goes to Boalt actually post here? Time to move on...

3/12/2010 9:41 AM  
Blogger McWho said...

Keep saying move on right up until you ask me to come do a ball full of drunk 1Ls to bid on largely useless crap in order to provide money for the school.

I actually like that the blog links alums and current students. I guess you disagree, which is fine. It isn't like law school is supposed to help you enter the legal profession or anything.

3/12/2010 10:01 AM  
Blogger McWho said...

*to. Though *do is a rather funny typo.

3/12/2010 10:02 AM  
Blogger Matt said...

I'm a 2L here, but I don't see why that matters. I think the blog is enhanced by non-law-student participants.

Also, good job coming to the BLF auction, McWho!

3/12/2010 10:42 AM  
Blogger caley said...

YES!! "Mock Trial with J. Reinhold!"

*As a disclaimer, this N&B member is a "non-law-student" participant, otherwise known as a Boalt alumnus.

3/14/2010 10:58 AM  
Blogger Sean said...

Hi anon, I am a current student. Have a nice day.

3/14/2010 1:26 PM  
Anonymous Anonymous said...

Yeah, but you fit in with the crazy right wing alums, Sean.

3/14/2010 8:35 PM  
Blogger Sean said...

That's so sweet; it is nice to feel included. Thanks anon!

3/15/2010 11:36 AM  
Blogger Carbolic said...

I like that I'm labeled a crazy right-wing the post where I'm agreeing with Stephen Reinhardt.

Only in Berkeley.

3/15/2010 4:09 PM  

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