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‘UNDER GOD’ UNDERDOG? The case of United States v. Newdow, No. 02-1574, is challenging enough for the Supreme Court. The issue, whether the words “under God” render the Pledge of Allegiance unconstitutional under the First Amendment, has already divided the nation. But with the case comes the respondent: Michael Newdow of Elk Grove, Calif., who first challenged the Pledge on behalf of his public school student daughter � and who promises to make the case even more tricky if the Supreme Court decides to grant review. In a filing with the high court later this week, Newdow says, he plans to make it clear that he wants to take on the Supreme Court both pro se and pro hac vice � joining the extremely small club of high court advocates who are not members of the Supreme Court Bar but who argue their own cases nonetheless. On top of that, Newdow plans at a later date to take the rare step of asking that Justice Antonin Scalia recuse himself in the case because of widely reported statements he made in January indicating that only “democratic” change could take the words “under God” out of the Pledge � presumably meaning action by Congress, not the Supreme Court. “I think I am highly qualified to argue this case. There is no one who knows this case better than me,” says Newdow, who notes that he has written every brief and argued every minute of his case so far. “There may be people who know the legal issues better, but I needed to get an atheist to argue this. I want me.” Newdow’s insistence about pressing his own case before the Supreme Court is causing discomfort among some of his natural allies. Both the American Civil Liberties Union and People for the American Way are staying on the sidelines until the high court acts. Only Americans United for Separation of Church and State is expected to file in the case at the certiorari stage. While some civil liberties lawyers have discussed the case with Newdow, he is not accepting substantive help. “He’s in over his head, but he won’t let anyone else take it over,” says one civil liberties activist who is monitoring the case. “A lot of us would breathe a sigh of relief if the case would just go away. It’s a no-win situation.” In press reports last year, Newdow was usually identified as a physician. But he has also been licensed by the California State Bar since July 2002. He says he is a 1988 graduate of the University of Michigan Law School. To be a member of the Supreme Court Bar, a lawyer must have been a state bar member for three years. Supreme Court Bar membership is not a prerequisite for filing a petition pro se, but it is for a lawyer who wants to argue a case � unless he or she wins admission pro hac vice. The Court is rarely asked to admit someone this way, but when it is, it usually says yes, unless it appears to the Court that the lawyer has not been connected to the case for very long. Sometimes, freshly minted members of the solicitor general’s office need pro hac vice admission in order to be allowed to argue before the Court. What makes Newdow’s plan especially unusual is that he is his own client, so he will also be filing pro se. In the most recent instances of pro se representation, the 1998 case Lunding v. New York Tax Appeals Tribunal and last year’s Christopher v. Harbury, both Christopher Lunding and Jennifer Harbury were already members of the Supreme Court Bar. Incidentally, Lunding won and Harbury lost. And the general consensus among Court-watchers is that Harbury did not help herself by arguing the highly emotional case involving the Central Intelligence Ageny’s role in the death of her husband, a Guatemalan rebel leader. Emotion is never far away for Newdow either. Solicitor General Theodore Olson’s brief challenges Newdow’s standing in the case, because he is the noncustodial parent of his daughter. The U.S. Court of Appeals for the 9th Circuit said Newdow had standing nonetheless. When asked about the standing issue in a phone interview, Newdow angrily launched into an indictment of the “insane and grossly unconstitutional family law system” that resulted in his loss of custody. “I am a terrific father, and yet I am the only person in the world who is forbidden to see her � except every two weeks.” According to Newdow, the custody battle has cost him more than $100,000, much of which has gone to pay attorney fees for his daughter’s mother. (Newdow says he and the mother, Sandra Banning, never married.) Banning’s Sacramento lawyer, Dianne Fetzer, did not return phone calls seeking comment. In any event, Newdow says he expects to regain custody of his daughter this summer, so that standing will not be an issue. But if it still is, he thinks he can achieve standing as a taxpayer and as a parent who still has a role in making decisions about his daughter. Asked if the emotion of the custody battle will hamper his advocacy on the Pledge issue, Newdow says, “You’re allowed to have passion at the Supreme Court.” On the merits of the case, Newdow is also taking an unusual step. His filing this week will respond to the government’s certiorari petition, which asks the Court to review the controversial ruling of the 9th Circuit declaring the Pledge unconstitutional. Ordinarily, respondents oppose review, but Newdow will acquiesce, because he, too, objects to the 9th Circuit ruling. In its original June 2002 ruling, the 9th Circuit said the 1954 congressional enactment including the words “under God” was unconstitutional, as was the Elk Grove School District’s teacher-led recitation of the Pledge. But the court amended its ruling in February to limit its scope to the school district’s use of the Pledge. On the broader issue of the constitutionality of the Pledge, the appeals court remanded for further proceedings. Newdow challenges the narrowing of the decision, so he, too, wants the high court to grant review. Proponents of the government’s position are viewing Newdow’s unusual tactics with amusement and concern. Jay Sekulow, chief counsel of the American Center for Law and Justice, who wrote a brief in the case for some members of Congress, says he understands Newdow’s decision to press the litigation himself. “It’s his right to take the case,” he says. Sekulow adds that he believes the high court will grant cert by early fall: “I’d be stunned if they didn’t.” But he also thinks the standing issue is crucial, and could give the justices an “easy out” if they want to avoid the contentious Pledge debate. Since the question of standing has such personal dimensions for Newdow, Sekulow says he, like others, wonders if it is wise for Newdow to argue on his own. LIKE FATHER, LIKE CLERK Supreme Court Justice Clarence Thomas first met Deputy Attorney General Larry Thompson in 1974 as they studied for the Missouri Bar exam. Next year, Thompson’s son Larry Thompson Jr. will work for Justice Thomas in his chambers as a law clerk. Thomas revealed the hire during a recent talk with students at Banneker High School in Washington, D.C. A student asked Thomas whether any of his contemporaries were as successful professionally as he is. Coincidentally, the student asking the question said his name was Larry Thompson. Thomas laughed that “that’s a very important name” for him � because of his friend, the Justice Department official, and Larry Jr., who will soon be one of Thomas’ law clerks. Justice Thomas said the elder Thompson is “one of the smartest, most talented people I know,” adding that Larry Jr. is “equally talented.” The younger Thompson just graduated from New York University School of Law, and this summer begins a one-year stint as a law clerk to J. Michael Luttig, a judge on the U.S. Court of Appeals for the 4th Circuit and a leading supplier of clerks to the high court. When he heads to the Supreme Court, Thompson will be Thomas’ second African-American law clerk. His first, Stephen Smith, is now an associate professor at the University of Virginia School of Law. During a C-SPAN interview earlier this month, the deputy attorney general was shown videotape of the comments by Justice Thomas. “My son is much more qualified than I am,” he said. Thompson the father was also asked if he himself might soon be working at the Supreme Court � as a justice. With regularity, Thompson’s name pops up in the D.C. rumor mill as a potential nominee. Though he did not completely reject the idea, Thompson said he intended to return to Atlanta after leaving the Justice Department. He also said it was “highly unlikely” that someone like himself, who has never been a judge, would be appointed to the high court. BREAKING GROUND On a rainy (aren’t they all lately?) and inauspicious day last week, three justices participated in a most un-justice-like ritual: a groundbreaking ceremony for the Court’s $122 million modernization project. Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy gingerly turned over soil using shiny new shovels on June 17 to mark the beginning of the project on the Maryland Avenue side of the Court building. O’Connor and Kennedy participated in their capacity as members of the Court’s building committee who have overseen plans for the project. The ceremony launched the first phase of the project, construction of a two-story underground annex mainly to house the Court’s growing police force. The annex is scheduled to be completed in 2004. After that, the project moves inside the existing 68-year-old building to replace most of the Court’s aging systems, set for completion by 2008. So far, the most tangible work has been the installation of remarkably effective soundproofing window inserts that will allow the Court’s deliberative work to continue uninterrupted by the noise of jackhammers and other heavy equipment. The window coverings also seem to make the building even more isolated from the rest of the world than usual; employees complain they can’t hear sirens outside, much less the occasional chickadee. Given the timing of the groundbreaking event, at the height of the rumor mill season for Court retirements, attendees were looking for any possible sign from Rehnquist and O’Connor that they are inclined to go or stay. Rehnquist’s only veiled hint came during brief remarks, when he recounted how the original construction of the Court cost less than $10 million, under budget and on time. “The renovation project for which we break ground today is scheduled to take five years and cost about $122 million,” Rehnquist said. “When it is completed, I hope that we will again be returning funds to the Treasury” (emphasis added). The notion that Rehnquist, 78, will still be chief justice when the project is completed in 2008 may be about as fanciful as the idea that there will be a surplus to return to the Treasury � or that the project will be done on time. But it was not an accidental formulation: The word we appeared in Rehnquist’s prepared text. O’Connor’s remarks, perhaps, cut the other way. The 73-year-old justice marveled that when a building like the Supreme Court gets to be her age, “one can change all the infrastructure and keep it going for another 70 years or so.” Wistfully she added, “I wish that were possible for individuals, but it isn’t.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. “Courtside” appears every other week. Mauro can be reached at [email protected].

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