Rusting Car Bumper

You simply didn't understand my language. I said "require kids say the pledge or do nothing." That, in fact, is correct. The choices are just that. One of the two is required.

The issue is that there is the requirement of one of these two options because if they did not recite the pledge there would be no injury and thus no reason for action.

His argument would probably have to be modified if, say, the school offered a secular alternative.

DC

fromtheright

DC,

You're right, I missed that. I'll try to be more careful. Even more embarrassing is that you said it twice in your note and I missed both. Thanks for the correction.

Layman

And everything else he's written and said on the subject up until now.

Yes it does. But Scalia would and does argue that the "some plausible support" referenced is relatively modern but misguided Supreme Court precedent on the issue.

Scalia never said anything of the sort. He believes in and has practiced judicial review hundreds of times. Remember RIFRA, for example?

By all accounts he works as hard or harder than any other justice.

I'm not familiar with that case.

We are both allowed to interpret him. But that does not mean that any interpretation we offer is reasonable, informed, and/or accurate. Yours is unreasonable, uninformed, and inaccurate.

Yes they are, but sorting "binding precedent" from "dicta" in those decisions provides plenty of leeway to the Appellates. And in this case there was no binding stare decisis on the Pledge issue. And there was some strong dicta from the Supremes that affirmed the constitutionality of "under God" in the Pledge.

Saying "some plausible support" is not the same thing as saying "mandated by Supreme Court precedent."

Actually, considering that the Ninth Circuit is the most overturned circuit (in percentages) of any of the Circuits, I doubt that you can assume they were just following orders.

We'll see just how "minor" it is when the case gets to the Supremes.

The term is almost meaningless now, but the difference between Scalia and what liberals think of when they hear "strict constructionists" is that Scalia cares not for Congressional intent in statutory interpration cases. He's a textualists. He does seem to be more interested in "original intent/understanding" for issues of Constitutional interpretation.

hezekiah jones

Layman, being an exemplary attorney and upstanding member of the California bar, would never remove my posts from their context in order to score cheap points would he? Let's have a look, just for shits and giggles. (Recall: this thread, and in particular my comments, have to do with Scalia's remarks with respect to Newdow v. Congress.)

My first post in this thread:

"Such decisions," i.e., Newdow. In Newdow, a Federal Court of Appeals ruled an Act of Congress unconstitutional on behalf of the plaintiff Newdow, as in, "Petitioner Michael Newdow versus Respondent The United States Congress." Tracking so far? Good.

To which ftr replied:

I responded to ftr as follows:

Note: Scalia's remark is puzzling to me with regard to the specific case Newdow v. Congress. And, according to this newspaper report, Scalia is saying that this particular decision, since it is a member of the set "such decisions," should be made legislatively, not by courts. That's what it says.

To which Layman opines:

I admit (graciously, I thought):

Layman's rejoinder:

To which I must now reply, that I am unaware of Scalia's previous written or spoken commentary on the subject of Newdow v. Congress. Or did I miss something?

Anyway, since my "interpretation" is "unreasonable, uninformed, and inaccurate," I don't see much point in continuing at the moment. (How a question or two and an admission to being "puzzled" constitutes an "interpretation" is beyond me. On the other hand, an "interpretation" might begin with the words, "I think Scalia is saying that … " which I guess is supposed to be reasonable, informed, and accurate by default.)

Layman

It is foolish to ignore Scalia's often cited and often practiced views on the Doctrine of Judicial Review because his comments were made as to a relatively new case.

If you want to clarify what it is you think, or suspect, Scalia meant, then perhaps you can just say so and we do not disagree and there would be no point in continuing. On the other hand, if you intend to remain elusive about what you were accusing (or suspecting, or speculating) Scalia of, then you can just end the discussion in a huff so as to avoid clarifying your meaning, accusations, insinuations, or suspicions.

You also said things like this:

Besides, if Scalia really is saying that people that "get worked up over" potential violations of the Constitution should deliver their dyspepsia to the legislature, what the hell is he doing sitting on the Supreme Court?

There is no basis, other than convenient Scalia bashing, to suppose that Scalia has changed his mind (as shown by hundreds of decisions and comments) about the Doctrine of Judicial Review.

There is no puzzle here. Scalia said nothing that would indicate he is exempting legitimate constitutional questions relating to the Establishment Clause from Judicial Review. What he is saying. What he has often said. Is that recent trends in Court decisions have gone too far eliminating statements about "God" from public activities--such as in the Pledge of Allegience.

hezekiah jones

Scalia, the main speaker at an event for Religious Freedom Day, said past rulings by his own court gave the judges in the Pledge case "some plausible support" to reach that conclusion.

However, the justice said he believes such decisions should be made legislatively, not by courts.

So ... the insertion of "under God" into the Pledge by an Act of Congress in 1954 does not raise a legitimate constitutional question? Is that what you (and Scalia) are saying?

Layman

Again. There is no mystery here. You guys sound hysterical attempting to charge that Scalia does not believe in the Doctrine of Judicial Review.

The answer is that we do not believe that there is any constitutional infringement in these actions so yes, they should be decided by the legislature.

Philosoft

Puh-leez. You'll forgive us if we don't immediately accept your interpretation of Scalia's comments?
This just makes zero sense. Essentially, what you are saying is Scalia has decided on his own that "such decisions" as Newdow are constitutionally permissible to the extend that the court doesn't have to determine whether "such decisions" are constitutionally permissible. If what Scalia is doing is indeed making a determination that a legislative issue is constitutionally permissible, then should he not do so under the guise of the judgeship, as per the very purpose of the court?

Dr Rick

You tell 'em. Layman:

Infact, let's go all the way: "People who get worked up" over unreasonable searches and seizures that are prohibited by the Fourth Amendment "should take their arguments to the legislature". So should "people who get worked up" over cruel and unusual punishments, freedom of speech, taxation without representation, the right to avoid self-incrimination, the right to legal counsel, and other pointless stuff.

What's the problem, dudes? Be reasonable; afterall, it's not like we're a republic that respects personal freedom and establishes a balance of power to prevent government abuse, or something.

Rick

Layman

You are free to make whatever errors you wish. It's somewhat embarassing to insist or even suggest that Scalia does not believe in the doctrine of Judicial Review.

It makes perfect sense. If something is constitutionally permissible, then it's up to the legislature to decide whether to do it or not.

No, Scalia is offering his opinion that such references to "God" in public actions are not unconstitutional, and therefore are a matter left to the legislature to decide.

What makes you think he does not or will not? As far as I know, Scalia has not refused to partake in cases involving the Establishment Clause.