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Thursday, March 25, 2004

Newdow and the Supremes

Linda Greenhouse paints an interesting picture of yesterday's oral argument in the SCOTUS pledge of allegiance case. Conservatives will perhaps cry "librul bias!" but I think her first-hand account dispels such talk. In short, her article makes Michael Newdow, the citizen-lawyer who argued that "under God" should be removed from the pledge, look very good.

Dr. Newdow, a nonpracticing lawyer who makes his living as an emergency room doctor, may not win his case. In fact, justices across the ideological spectrum appeared to be searching for reasons he should lose, either on jurisdictional grounds or on the merits. But no one who managed to get a seat in the courtroom is likely ever to forget his spell-binding performance.

That includes the justices, whom Dr. Newdow engaged in repartee that, while never disrespectful, bore a closer resemblance to dinner-table one-upmanship than to formal courtroom discourse. For example, when Dr. Newdow described "under God" as a divisive addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.

The vote was unanimous, Dr. Newdow said.

"Well, that doesn't sound divisive," the chief justice observed.

Dr. Newdow shot back, "That's only because no atheist can get elected to public office."

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared "if there's any more clapping."

The chief justice was embarrassed in his own turf, by an emergency room doctor, no less!

Dr. Newdow, 50, often spoke very rapidly but never appeared to lose his footing during the 30 minutes the court gave him. He managed a trick that far more experienced lawyers rarely accomplish: to bring the argument to a symmetrical and seemingly unhurried ending just as the red light comes on.

Linda Greenhouse is a person who knows of what she writes here, having won awards for her Supreme Court coverage. Jonathan O'Connell also had an interesting look at Newdow a few days ago in a TAP Online piece.

An emergency room physician professionally, Newdow has obsessed over the idea of challenging the government's "God" references for years. His initial plan for a lawsuit didn't involve the Pledge of Allegiance. "I was looking at a coin -- the words 'In God We Trust'-- and I decided that it must not be constitutional," he said.

Not surprisingly, suing the government over a phrase on its currency can be difficult. But when his daughter began school in 2001, Newdow saw another chance. He sued the school district, submitting a brief using information he gathered surfing the Internet at home. When the court agreed to hear his case, he refused his appointed lawyer, opting instead to try passing the California bar exam..

"I didn't know anything about law," he says. "I didn't know how to file a brief."

He passed the bar, though, and argued his own case: The 9th U.S. Circuit Court of Appeals ruled 2-1 in his favor, declaring that the Pledge was a government endorsement of religion and a violation of the First Amendment.

No matter what happens in the courts, Newdow has vaulted his beliefs into the nation's public discourse. Though he's quit work and has begun living off savings, he says he's spent less than $2,500 working on his case, mostly to photocopy thousands of pages of legal briefs and to pay the $150 fee to submit a brief. He relies on legal knowledge gained by reading late into the night on a website, Freelaw.com.

"It's the American system that allows that," he says. "It allows a person with $150 in their pocket and a computer to make change in the country and I think that's a wonderful thing." In addition, he's begun relying on volunteer attorneys, who Newdow credits as "helpful, since legally, I don't have any idea what I'm doing."

Regardless of where you come down on the pledge case, you have to admit that's damn impressive. This guy literally studied for the bar once he knew he wanted to make this case, he's done his own research, and he even did pretty well arguing before the Supreme Court with such a minimal background. Stories like this make me feel like average citizens really can do things, after all.