Strengthening Constitutional Self-Government

No Left Turns

As Good As Reversed

Behavioral science has told us for years that animals including humans can be trained to alter improper behavior through negative reinforcement. In the world of judging, the strongest negative stimulus (outside of impeachment) is reversal by a higher court, particularly when that court is the United States Supreme Court. Yet in their never-ending quest to prove Pavlov and Skinner wrong, the Ninth Circuit persists in rendering decisions that are the stuff of constitutional punchlines.

Keeping to this fine tradition, the Ninth Circuit today decided not to review en banc its prior panel opinion striking down the Pledge of Allegiance based upon the contention that the phrase "under God" violates the Establishment Clause. The order also amended the prior decision to clarify that the decision only applies to public schools, and not in general. Wheww, I’m glad they made that clear!

I’d offer my thoughts, but it is easier and better simply to quote from Judge O’Scannlain’s dissent from the denial of en banc review:

We should have reheard Newdow I en benc, not because it was controversial, but because it was wrong, very wrong--wrong because reciting the Pledge of Allegiance is simply not "a religious act" as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense.(1) . . . Reciting the Pledge of Allegiance cannot possibly be an "establishment of religion" under any reasonable interpretation of the Constitution.

Footnote (1): . . . My disagreement with the panel majority has nothing to do with bending to the will of an outraged populace, and everything to do with the fact that Judge Goodwin and Judge Reinhardt misinterpret the Constitution and 40 years of Supreme Court precedent. That most people understand this makes the decision no less wrong. It does not take an Article III judge to recognize that the voluntary recitation of the Pledge of Allegiance in public school does not violate the First Amendment.


You can read O’Scannlain’s complete dissent here. Three cup (sipped slowly) read.    

Discussions - 1 Comment

The intellectual paucity of the majority is shocking even for the 9th circuit. The utterly ad-hominem attack by Judge Reinhart on the reasoning of Judge O’Scannlain is breathtaking in its vacuity.


" As to the first question, I disagree with the notion that the importance of an issue is a sufficient reason to take a case en banc, either under the Rule or as a matter of judicial policy." This according to Judge Reinhart.


Well, then, there you go. Importance is irrelevant to the 9th circuit. Most likely, though, the USSC will not agree with that statement, either now or anytime in the past.

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