In 2000, Michael Newdow filed suit against his daughter’s school. In 2002, he lost custody of his daughter. In 2004, the Supreme Court heard the case. They dismissed it because he did not have full custody.
The five ‘liberal’ justices you would have expected to vote for Newdow voted to toss his case. The four ‘conservatives’ you would have expected to vote against him ruled he could be heard. And it would seem they were right. The case was an important issue, it had good representation on both sides, it had found its way to the nation’s highest court, and they throw it out on a technicality invented for the occasion.
One justice, arch-conservative Justice Thomas, went farther. He said the Ninth Circuit was right — they should have restored the pledge. He did not say this lightly or to help his argument; he said it after serious consideration. “I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.”
But then he went further. There should be no wall between Church and State, he said. The First Amendment’s rule that “Congress shall make no law respecting an establishment of religion,” is pretty much meaningless. Government can start a religion, it can use your tax money to pay for it, it can do just about everything short of throwing you in jail if you don’t show up on Sundays.
When two judges on the Ninth Circuit removed two words added to the pledge in 1950, the world went crazy. It was front page news across America, TV pundits called it crazy, the Congress sang “God Bless America”. But when one Supreme Court Justice removed five key words from our own Constitution, nobody noticed.
In 2002, the US “captured” citzen Jose Padilla, a Chicago former gang member, and held him as a “material witness” in New York. His appointed lawyer sued there for his release, but before his case could be heard, the government threw him in a Naval Brig in South Carolina, where they reportedly tortured him for information about Al-Qaeda. His lawyer challenged this too. In 2004, the Supreme Court heard the case. They dismissed it because it was filed in New York, not South Carolina.
The five ‘conservative’ justices, four of which previously voted against dismissing a case on a technicality, voted to dismiss it. The four ‘liberals’ ruled he should be heard. It was an important case, it was before the nation’s highest court, which made rules for both New York and South Carolina, and it was thrown out for silly reasons.
One justice, arch-conservative Justice Thomas, went further. The President “very well may have inherent authority to detain those arrayed against our troops”. (In other words, he can capture whoever he wants even without Congress’s permission.) He also has “an authority that includes making virtually conclusive factual findings” and the courts “lack the capacity and responsibility to second-guess [his] determination.” (In other words, he can decide who should be captured and the courts can’t question him.)
Thomas was the only Justice who held this way. On that issue, the Court was 8-1. Some people suggest Justice Thomas simply votes however Justice Scalia does. But that was surely not the case here. Justice Scalia went crazy, voting with the court’s most liberal member, Justice Stevens. The President could not capture people without Congressional permission, he said. He could not capture people with Congressional permission. The only way he could capture people was if the Congress and he suspended the writ of habeus corpus.
Justice Thomas was again way out there in the blue.
posted June 28, 2004 01:34 PM (Politics) (5 comments) #