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Our Activist 9th Circuit

As pointed out by a reader, the Ninth Circuit has published its decision in Newdow v. Rio Linda Union School District. In an opinion by Judge Bea, the court upheld the use of the words "under God" in the pledge of allegiance. Judge Reinhardt wrote a blistering dissent.

Astute court-watchers will remember that the Judge Reinholdardt was the author of the 9th Circuit's 2002 ruling, which reached the opposite result. That decision was appealed to the Supreme Court, which used standing as an excuse to overturn the decision.

Judge Reinhardt has long been used as the Right's exemplar of an activist judge. But after skimming both the opinion and the dissent, it seems to me that Judge Bea is the one who is straining in order to reach a preordained result. As the dissent correctly points out, the issue in this case isn't the pledge as a whole, but the specific 1954 alteration--whose religious purpose was to insert a theistic profession into what was hitherto a purely secular and patriotic affirmation.

"Activist judge" is one of the terms I really dislike. It reminds me of one definition of an alcoholic: a person you don't like who drinks as much as you do. If the accusation is that judges modify their adjudications in light of political or pragmatic considerations, at least it's fully clear that this goes both ways.

That being said, it's hard to imagine the circus that would have arisen if the 9th Circuit again reached its earlier result. To the extent to which appellate courts are able to pick and choose their battles (which is debatable), I would prefer they do so in areas that have a more meaningful impact on the lives of ordinary people.

Full post as published by Nuts & Boalts on March 11, 2010 (boomark / email).