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OUR OPINION: After speaking about case, justice does what is ethical

by removing himself. Court's decision likely will be skewed




Judge's words will impact pledge ruling

By T&D Staff Writer

The national debate about the Pledge of Allegiance may be decided with what is effectively a non-decision.

The U.S. Supreme Court earlier this month agreed to rule whether it's unconstitutional for children in public schools to pledge their allegiance to "one nation under God."

Next year, the high court will hear the case of a California atheist who objects to the pledge his 9-year-old daughter's teacher leads daily, basing his argument on the doctrine of separation of church and state. The 9th U.S. Circuit Court of Appeals in San Francisco agreed with Michael Newdow last year.

When the case is heard by the high court, a key conservative voice who might have been expected to see things differently than the appeals court won't be heard.

Justice Antonin Scalia has removed himself from the case - and justifiably so.

As unbiased interpreters of the law, judges are expected to refrain from speaking out about key social issues in the context of pending cases. Their rulings are to be the official word, based on interpretation of law and not personal opinion.

That is not to say judges do not have opinions that certainly sway their interpretations. Such is the battle in Congress over confirmation of "conservative" and "liberal" nominees to the federal bench.

It is to say that judges should refrain from voicing those opinions in the context of cases they will hear. Many judges extend the moratorium on speaking out even to their judicial decisions. They are not to be politicians.

In what promises to be the first of many maneuvers in the Pledge of Allegiance case, a group known as Americans United for Separation of Church and State took Scalia to task for a speech made to the Knights of Columbus in January.

Scalia voiced opinion about the courts stripping God from public life. He said the pledge fight should be handled democratically, not by courts.

"But the new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat," Scalia told a rally celebrating religious freedom.

Legal experts have said the justice got into trouble by specifically mentioning the California ruling in the pledge case and then following it up with commentary about his beliefs on the subject.

Challenging Scalia's objectivity, the group called for the justice to recuse himself. The argument is that by his statements, Scalia indicated he has made up his mind before the case is heard.

Judicial ethics are at stake.

It's not unlike a juror making statements about his or her position on the death penalty before hearing a capital case and sitting in judgment of the accused. The juror may be able to separate personal opinion and render an unbiased decision based on the evidence, but the statements put that in doubt.

In the end, Scalia's exit from the case could lead to a 4-4 vote among the court's liberals and conservatives. The tie vote would let stand the appeals court's decision against the pledge with its "under God" reference being recited in public schools.

As unpopular as the decision will be with an as-yet-unaware public screaming about Scalia's exit, his removing himself from the case is proper. And realistically it will result in attempts to have the justice take himself out of other religion-oriented cases. As much as he should feel no obligation to do that regarding a case about which he has not spoken directly, a no-decision decision on the pledge will not be irreversible.

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