I share the sentiment, however, that “force” has various shades. For instance, Scalia supporters surely know of the case of Lee v. Weisman, in which “coercion” was given broad (but realistic) reach.

As to the “obvious” idea that actually forcing people to pledge is un-American, I put that up with the “obvious” idea that prayer in schools on the level of Engel v. Vitale (or more): it simply is not accepted across the board.

The idea that the average nine year old can easily “voluntarily” dissent when something is the official opening of school day is suspect in my eyes anyway.

If I understand HR 2389 correctly, the issue is whether Congress can divest the federal courts, including the Supreme Court, of jurisdiction over claims that the Pledge of Allegiance, in some form, violates an individual’s rights under the Constitution.

As you all have pointed out, this is one issue that the Court has been very reluctant to reach throughout its history. (However, note that in Hamdan v. Rumsfeld, Scalia’s dissent, which read the DTA to divest all federal courts of jurisdiction, required him to reach — and reject — both the Suspension Clause and the Exceptions Clause/Article III arguments.)

Usually, the Court’s reluctance has arisen in cases involving divestitures of habeas jurisdiction — e.g., Yerger, St. Cyr, etc. In that context, the stakes are especially high, so one can understand the hesitation exercised by the Court. On the other hand, this statute limits the ability of litigants to bring actions, presumably seeking injunctive relief, claiming a violation of the First Amendment vis-a-vis the Pledge. However, while preventing actions that seek injunctions might be within Congress’ Exceptions Powers (although I think that proposition is not on firm ground), the statute also clearly allows a state to criminalize the failure to participate in the Pledge of Allegiance. Hence, I think the statute should be rejected as unconstitutional because it implicates the Article III/habeas cases.

To demonstrate, suppose a state were to pass a law that “every school child shall participate in saying the Pledge of Allegiance with patriotic fervor.” Failure to do so subjects a child to adjudication as a juvenile delinquent. A child says the Pledge while rolling his eyes, and, over objections under state and federal law, is adjudicated a JD. On appeal, he claims that he did participate in saying the Pledge “with patriotic fervor,” and he also claims that the state law is void for vagueness and thus violates the 14th Amendment Due Process Clause. The highest state court holds that he did not participate in the Pledge with patriotic fervor, and also holds that the state law does not violate the Due Process Clause.

Question #1: Can the Supreme Court grant certiorari to hear the case?

Question #2: If the Court denies cert, can the child bring a habeas action in federal court?

I don’t have time at the moment to write out my answers to these questions, but I think the result of my hypothetical is that an individual is prevented from bringing a colorable constitutional claim via the federal courts’ habeas jurisdiction. For that reason, HR 2389 probably would be rejected.

But who really knows?

I don’t think that Roberts is really a “minimalist.” If his statements to the SJC are any indication, at some point he will develop a complex jurisprudential theory, and his nuances will become the stuff of law school texts. (I doubt Alito will achieve this, but I will leave this to another day.)

As to the substance of the pledge, no matter what the case, I think that for the next 50 years we are going to get more avoidance. For my part, I think avoiding the issue is a good thing, because it allows, as a practical matter, states to decide how much Judeo-Christian indoctrination they want to foist upon kids.

On practical form of avoidance would be to simply revisit (or clarify) Lee v. Weisman.

The people who are championing the pledge don’t really think of some nebulous multi-faith god. Indeed, the Solicitor General’s argument, while well-crafted was not the position taken by the administration, and is certainly not the position taken by most religious folk in my country.

But, the strangest thing about it, is that 4 U.S.C. § 4 imposes absolutely no duties on anyone. It is virtually unenforceable. Even if it was, there are no criminal penalties for violating something that isn’t a crime. Indeed, even § 8 (whose enforcement is unconstitutional) speaks in vague terms. I probably would like to see §§ 8(i), (j) enforced (and I think this section could be constitutionally enforced since it would only be under middle-tier scrutiny).

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Thus, since this is a case that would not involve ambassadors, public ministers, or cases where a State is a party, Congress may exempt the court’s jurisdiction from these cases. Without federal appelate or SCOTUS jurisdiction, Establishment Clause challenges or challenges brought under similar provisions of the States’ respective constitutions would have to be heard in state court. While this may well lead to a patchwork of different standards, I don’t have a problem with Californians doing one thing while people in Mississippi do something different. And while I don’t really view this as a federalism issue, I nevertheless can’t help but to think that a movment away from the idea we need one size fits all policies for the entire country may be a good thing — for use of the pledge or for abortion rights.

Eliminating 1988 might make it easier to police dangerous streets, because municipalities would fee more free to aggressively prosecute poverty and could freely administer justice to those most in need of it, and wouldn’t have to even fear injunctive relief, as it would become somewhat more impractical.

Hans’ suggestion for attorney fee reform is a good one for other reasons, but I don’t think it would stop Newdow et al. in this case. And there is no need to stop him. Just let the case come to its normal conclusion.

Although I don’t really understand how lay people refer to “liberal” and “conservative” it is probably worth nothing that in most “liberal” states kids just are not being “forced” to say the “pledge” in the first place, so there isn’t standing to challenge it, even in a state with relaxed standing requirements. Whatever the case, the 9th Circuit’s final decision in Newdow didn’t involve a challenge to the actual statute, but rather a challenge to the District’s practices, which Congress’ jurisdiction-strip doesn’t seem to reach.