Strengthening Constitutional Self-Government

No Left Turns

Bashman on Newdows and Recusals

Howard Bashman of How Appealing asks "How many Justices will need to recuse themselves from the next challenge to the words "under God" in the Pledge of Allegiance to reach the U.S. Supreme Court?" In retrospect, he writes, "it was absurd for Justice Antonin Scalia to have recused himself from the Pledge of Allegiance case." His argument is worth repeating:

And what about the Chief Justice and Justices Sandra Day O’Connor and Clarence Thomas? Those three members of the Court yesterday, in a case in which a majority held that jurisdiction was lacking to reach the merits of the establishment clause question, issued opinions in which they stated that they would reject an establishment clause challenge to the Pledge in its current form. Will those three Justices need to recuse from the next Pledge case to reach the Court? If not, how is their prior commitment to a result different from Justice Scalia’s? And won’t it be easier, as a theoretical matter, for Justice Scalia to reach a result that differs from his public statement than it will be for the other three Justices to renounce their formal judicial opinions issued yesterday?

Check out his analysis of yesterday’s Supreme Court action.

And for more on Newdow, check out The Volokh Conspiracy’s answer to: Why did the Court agree to hear the Pledge case,given the standing problem? Didn’t they know that this was an issue?


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Just read David Cohen’s piece at BrosJudd

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