Stephen Reinhardt and Dorothy Nelson have been simpatico on the 9th U.S. Circuit Court of Appeals for 30 years. One former Reinhardt clerk says they have a good personal relationship.
But Nelson handed Reinhardt a bitter defeat by siding with conservative Judge Carlos Bea in an opinion upholding the words "under God" in the Pledge of Allegiance. The ruling, handed down Thursday, is the latest episode in a case that has brought scorn on the 9th Circuit from across the country, and has highlighted Reinhardt as an unapologetic -- yet increasingly solitary -- iconoclast.
In a 132-page dissent, Reinhardt said he doubts the constitutional protections at stake will evoke much concern in the political world.
"Instead, to the joy or relief, as the case may be, of the two members of the majority, this court's willingness to abandon its constitutional responsibilities will be praised as patriotic," Reinhardt wrote, "and may even burnish the court's reputation among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights."
But Bea wrote that the pledge is indeed a patriotic exercise, and the words "under God" must be viewed in that context.
"The pledge reflects many beliefs held by the founding fathers of this country -- the same men who authored the Establishment Clause -- including the belief that it is the people who should and do hold the power, not the government," Bea wrote. "They believed that the people derive their most important rights, not from the government, but from God."
Plaintiff Michael Newdow, an activist atheist, initiated the challenge to a California statute that directs teachers to lead children in the pledge every morning. In 2002, a 9th Circuit panel voted 2-1 to strike down the requirement, with Reinhardt joining Senior Judge Alfred Goodwin's opinion.
However, the U.S. Supreme Court ruled Newdow didn't have standing to bring the suit. Newdow recruited a fresh plaintiff, and the matter came before the current panel.
Nelson had some Establishment Clause cred to suggest she would be sympathetic to Reinhardt. In 1991, two of her Republican-appointed colleagues upheld Hawaii's decision to make Good Friday a legal holiday, but Nelson strenuously dissented.
Then came the uproar over the first 9th Circuit ruling on the pledge. That led Congress to reaffirm the "under God" wording.
So it was clear from the first go-around that Reinhardt might have trouble: Two moderates on the 9th Circuit, Ronald Gould and Johnnie Rawlinson, had joined conservatives in disagreeing with the previous panel ruling. But they failed to garner enough votes to take the case en banc .
President Jimmy Carter nominated both Nelson and Reinhardt to the 9th Circuit in 1979, part of a historic reshaping of the court. Stanford Law School professor Michele Dauber, who clerked for Reinhardt and has taken his oral history, says the two judges get along well.
But Thursday they parted ways.
"She's a conciliator. She's not a bomb thrower," Hastings College of the Law professor Rory Little said of Nelson, who was dean of the University of Southern California Law School before she joined the court.
Adds Dauber: "It doesn't take a brain surgeon -- or a professor at Stanford -- to think Judge Nelson doesn't want Glenn Beck giving out her home address so people can go picket her house."
Congress added the words "under God" to the pledge in 1954, at the height of McCarthyism, notes Reinhardt, himself a scion of Old Hollywood who came of age during the blacklists. Reinhardt made it clear that the rest of the pledge could surely pass constitutional muster, but forcing atheist children to stand mute while their classmates recite "under God" is a violation.
Bea acknowledged the uncomfortable situation for those children, but maintained the pledge to be a patriotic exercise, not a religious one.
In a separate ruling, the court also upheld the words "In God We Trust" on the national currency. Reinhardt concurred, saying the result in the pledge case compelled him.