Cite precedent, not passion

Based solely on what I’ve heard and seen, the majority of legal scholars who have been interviewed by the media tend to agree that the Newdow decision will be reversed. Most scholars state that the reversal will occur primarily because (1) the decision is controversial and came at a time of heightened patriotism (in view of September 11, July 4, etc.), (2) the 9th U.S. Circuit Court of Appeals is the most liberal and reversed federal court in the country, and (3) the majority of people in this country think that Mr. Newdow, Judge Goodwin and the 9th Circuit are nuts.

I’ve been surprised to hear legal scholars comment on Newdow in such ways. Whatever happened to analyses based on the Constitution and U.S. Supreme Court precedent? The en banc panel of the 9th Circuit (and later, perhaps, the U.S. Supreme Court) will have their creative work cut out for them in Newdow if their goal is to reverse it.

In light of U.S. Supreme Court cases such as Wallace and Santa Fe, it seems logically impossible to hold that the 1954 Act (adding “under God” to the Pledge) doesn’t violate the Constitution. Both cases were discussed at length in Newdow and need no re-examination here. Suffice it to say that those cases, among others, were directly on point. I’d like to know, however, why the legal scholars with the major media organizations aren’t analyzing Newdow in view of these cases. Instead, they keep referring to how unpopular the opinion has been and that it will surely be reversed.

Are these experts afraid to speak honestly out of fear of becoming unpopular like Mr. Newdow has? Are they concerned that they could lose their prestigious media jobs (as “legal experts”) if they state the unpopular truth? Perhaps they honestly expect the reviewing court(s) to ignore or distort prior case law in order to avoid public controversy? If so, they must think we have a corrupt judiciary, and they should tell us that.

Authoring a reversal of Newdow would surely test a reviewing court’s ability to baffle us with bullshit; less crudely, it would force them to resort to the most transparently disingenuous pseudo-scholarship. On the other hand, it will take an honest reviewing court to affirm Newdow. In any case, concerns over patriotism, controversy and the popular majority have no business in the analysis.