A Court on ‘Left Coast’ of Legal Map

The San Francisco-based U.S. 9th Circuit Court of Appeals is the last bastion of old-fashioned liberal activism in the federal system, a place where judges are not afraid to push the margins of the law.

Its judges declared that dying patients have a right to doctor-assisted suicide, and they have repeatedly stood in the way of state officials trying to carry out the death penalty.

In 1992, the justices of the Supreme Court were kept up all night as they reversed four successive stays from the 9th Circuit that for a time had halted the execution of San Diego murderer Robert Alton Harris.

Wednesday’s ruling striking down the Pledge of Allegiance may be seen by many--including several of those justices--as further evidence that the 9th Circuit represents the “Left Coast.”

No regional court has its decisions reversed as often as the 9th Circuit. In 1997, the high court took up 29 cases from the 9th Circuit and reversed 28 of them. Nearly two-thirds of those reversals were unanimous.

This year, the justices have reversed 12 of 16 rulings in cases that came from the 9th Circuit.

Not surprisingly, legal experts were quick to predict the three-judge panel’s ruling in the pledge case will be reversed.

“I definitely expect the Supreme Court will reverse this, if the full [9th Circuit] court doesn’t do it first,” said Catholic University Law Dean Douglas Kmiec.

But he said it was a mistake to portray the 9th Circuit or Wednesday’s ruling as extreme.

“To paint this as a wild-eyed opinion is wrong. If you take seriously what the Supreme Court has said on this subject, you could plausibly come to this conclusion,” said UC Berkeley law professor Jesse Choper, an expert on the Supreme Court and church-state law.

The Supreme Court has not taken up challenges to mottoes or references to God, such as the phrase “In God We Trust” on coins. However, it has intervened when schoolchildren were given a message about religion.

Justice Sandra Day O’Connor, the author of many key church-state rulings, has said the Constitution does not permit government to take actions that appear to “endorse” religion.

For example, O’Connor and her colleagues struck down an Alabama law that called for a daily moment of silence in the public schools because, she said, it was intended as a state endorsement of prayer.

Later, the court rejected a Texas school board’s policy allowing student-led prayers at football games.

Wednesday’s ruling cites those cases and O’Connor’s words. The court’s opinion by Judge Alfred T. Goodwin, who was appointed to the court by President Richard Nixon, also relies heavily on one of the most remarkable decisions in the Supreme Court’s history.

During World War II, the justices were asked to reconsider the state laws that required schoolchildren to salute the flag and recite the Pledge of Allegiance. (In those days, the pledge did not include the phrase “under God,” which was added in 1954 during the Cold War.)

Parents in West Virginia who were Jehovah’s Witnesses challenged the pledge as violating their rights to freedom of speech and freedom of religion. On a 6-3 vote, the Supreme Court agreed.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism [or] religion ... or force citizens to confess by word or act of faith therein,” Justice Robert H. Jackson wrote in West Virginia vs. Barnette, which was issued on Flag Day in 1943.

These days, legal experts say the West Virginia ruling stands for the principle that children cannot be compelled to salute the flag or say the Pledge of Allegiance.

Parents can ask that their children be exempted.

Law professors say the 9th Circuit erred by taking the next step and ruling that the pledge itself is unconstitutional because of the reference to God.

“But they are inclined to be on the cutting edge and to push the margin,” Kmiec said.