The Supreme Court is taking up the Newdow case. For anyone who doesn’t own an AM radio or cable TV, Michael A. Newdow is the lawyer who successfully sued the Elk Grove Unified School District over the use of the phrase "under God" in the pledge of allegiance.

But the fun is only beginning. Antonin Scalia, the Negative Stereotype of the Supreme Court, has recused himself. It was a given that Scaly was going to vote against Newdow no matter what, and the fact that he was foolish enough to give speeches on the Newdow case last winter meant that he pretty much had to recuse himself. The Court is trying to regain the legitimacy it lost in the Bush vs. Gore decision, and having Scaly sit in judgement on a case he had already tried in the press would have just made a bad situation even worse.

The Newdow case is one of those types that often result in a 5-4 decision by the court. With the ultra-conservative Scalia recused, it means a 4-4 "decision" is possible. In the event of such a vote, the decision of the appeals court is upheld. In this case, it means schools would not be able to have the kids recite the pledge with the 1954 phrase "under god" in it. Incidently, a 4-4 vote also means that the decision cannot become part of stare decisis, which is dead language that means "to stand by that which is decided." ("The principle that the precedent decisions are to be followed by the courts," or the body of law used for precedent in future decisions of a similar nature.)

Buckeye ELO, a Usenet presence with a legal background, noted that the SC is usually reluctant to directly base a decision on the issue of Constitutionality. He wrote, "The Supreme Court will, if possible, decide cases on nonconstitutional grounds even when such grounds

were not raised by the parties."

Except a 4-4 tie could not be entered into the body of law as constitutional precedent, even if they base a ruling directly on either of the provisions that relate directly to religion in the Constitution. That could embolden this otherwise highly political court.

But perhaps I’m dreaming. The court, after all, took up the case, not to determine the constitutionality of the use of the pledge with the religious addendum in the schools, let alone on the basis of Newdow’s argument that Congress acted unconstitutionally when it added the phrase in 1954, but on the issue of Newdow’s standing to bring the case. Newdow did not have legal custody of his second-grade daughter when he filed the case, which opponents argue means he lacked standing to initiate the suit.

Another element to watch for is the newly minted occupation of minister that Newdow, an atheist, has assumed. He describes himself as a minister of the "First Amendmist Church of Truth and Science." Part of his argument is that the phrase "under god" establishes an official state preference for monotheism over atheism or polytheism.

I think if Newdow is planning such an approach, it would be a mistake on his part. While various religious fanatics, including the crazed Chief Justice of Alabama, Roy Moore, like to argue that "secular humanism" is just a rival religion, the court could simply note that it’s no more a religion than "barefoot" is a type of shoe, or "bald" a hair color. Thus, by noting a commonplace, they could demolish Newdow’s argument.

Scaly didn’t say why he recused himself (the justices never do), but almost certainly it was due to blowback he got from some remarks he made during a gathering with the strangely unapt name of "Religious Freedom Day" (best parsed to mean, "I am free to kneel on your neck") at which time he commented directly on the Newdow decision, accusing the 9^th Circuit Court of "exclud[ing] God from the public forums and from political life."

That would pretty well eliminate any possibility of his taking up the case impartially. This is even more blatant than his incredible remark when he ordered the SC to take up the Bush vs. Gore case on the grounds that "failure to do so might cause irreparable harm to the Bush campaign." Yeah, they might have counted the votes and discovered that Putsch lost. It was definitely one of the lowest, if not THE lowest point in the Supreme Court’s 215 year history. Sitting on Newdow could have topped it, if "topped" is the appropriate word here.

Now, it would be folly to predict how the court will rule in this case, or even what criteria they might base any ruling on. Most experienced court observers were surprised that they took up the case at all. They could have elected to punt, and let the psuedo-Christian anti-American right howl and gibber endlessly. Court apologists could easily point out (perhaps even honestly) that the court wanted a better case to base such a decision upon.

But the court isn’t expected to issue a ruling until next June, and traditionally, the court unleashes its really controversial decisions right at the end of a term. A glance at the surprising (and generally gratifying) decisions they issued last June (striking down Texas sodomy laws, upholding statute of limitations, upholding affirmative action, allowing Agent Orange suits to proceed, etc.) shows that the court is willing to take controversial stands at terms’ end.

The polls show a large majority of Americans think that making the little whelps pray to the cosmic sky muffin in the name of patriotism is exactly what Madison, Jefferson, Mason et al had in mind for America, so there’s only one decision the court could reach that could truly be termed controversial, and that’s the unpopular one.

So maybe, just maybe, that’s why a court, likely to be divided evenly four to four, has scheduled the decision for that particular time period.

Incidently, two other developments in law occurred in the past 24 hours. The court, the day before, turned down a case dealing with medical marijuana, in effect upholding the right of states to rule that doctors may discuss the potential benefits of medical marijuana with their patients.

And the Texas Democrats have brought suit over the egregious gerrymander of Texas Congressional districts by the Tom DeLay-controlled Texas Legislature, and court rulings there could uphold or kill GOP power grabs in Texas, Colorado, and perhaps a half dozen other states where the vile neo-fascists of the GOP hope to turn slight majorities in the state house into iron grips on the electoral process for decades to come.

And once again, our fates all rest on that thin black line, the judges who are supposed to safeguard the freedoms of us all against the vagaries of the majority.