In Elk Grove Unified School District v. Newdow, the Supreme Court will decide whether or not the Pledge of Allegiance, including the words “under God,” should be recited in public schools. The case brought by California atheist Michael Newdow gained nation-wide notoriety last year when the 9th Circuit (read: Circus) Court ruled that the pledge was unconstitutional.
Most people expected the decision to be overturned easily, but the recusal of Justice Antonin Scalia might make a difference. Justice Scalia has recused himself at Newdow’s request on the grounds that he criticized the 9th circuit decision last year.
That will upset the court’s recent 5-4 split. With Scalia absent, a 4-4 tie is possible. If that occurs, the previous court’s ruling will be upheld – in this case, against the pledge. If that occurs, there will be a national outrage over judicial activism, and that sentiment may spill over into other issues such as gay marriage. This might be an interesting session.