Last week, the Ninth Circuit Court of Appeals upheld the constitutionality of the Pledge of Allegiance (PDF). Judge Carlos Bea, the author of the majority opinion, finely exhibited what it means to be a constitutionalist judge. His opinion considered the words “under God” not in isolation, but within their proper context and according to an honest analysis of the relevant history.
In contrast, Judge Reinhardt’s dissenting opinion displays judicial activism at its best. Reinhardt used his opinion as a vessel through which to advance his own political views: attacking politicians and praising others: none of which had anything to do with the constitutional issue at hand.
Here are some of the highlights from Reinhardt’s hubristic dissent:
- Attacking Sarah Palin
Reinhardt mentions that some people who are not familiar with American political history may think that the current language of the Pledge dates back to the Founding Fathers. In a footnote 4, he states, “See, for example, the words of former Governor Sarah Palin of Alaska: ‘If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me . . . ‘”
While quoting misstatements by politicians is great fun for late night talk show hosts, it is difficult to see what if any purpose it has in a judicial opinion. Would quoting President Obama’s campaign gaffe in which he claimed to have visited 57 states be a proper judicial citation for the fact that some people don’t know how many U.S. States there are? No, and the citation to Palin does little to make Reinhardt’s point, unless that point is to mock Palin at the expense of judicial decorum.
- Accusing the majority of embracing the Tea Party movement:
In footnote 6, Reinhardt summarizes the majority’s argument that “under God” conveys the secular purpose of “limited government” because it refers to “the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain inalienable rights.” Reinhardt continues, “The majority’s explanation of the phrase bears a suspicious resemblance to the platform of the Tea Party movement, which proclaims itself to be a ‘group of like-minded people who desire our God given Individual Freedoms which were written out by the Founding Fathers. We believe in Limited Government[!]’… But even the Tea Party has not suggested previously that the phrase ‘under God’ was intended to refer presciently to its platform.”
But it goes without saying that the majority’s language bears a suspicious resemblance to, uh, the language of the Founders, and that modern American political activists movements–from both the Left and the Right–tend to draw on the language of the Founders themselves. Perhaps he missed this connection because his opinion bears such a suspicious resemblance to the diatribes of liberal activist organizations that themselves seek to strip any reference to our religious heritage from the public square based not on the actual requirements of the Constitution, but based upon their respective policy preferences.
And, finally, after using his opinion to make his political views ever so clear, Reinhardt makes clear his judicial philosophy as well:
- Embracing “Judicial Empathy”
In footnote 109, Reinhardt states, “Empathy, a much misunderstood term, even in the world of the judiciary, means ‘the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another.’… It is a quality that is most desirable in, even if frequently absent from, today’s federal judges at all levels of the judicial system.”
Reinhardt’s musings on political movements, politicians, and the current president’s political decisions have absolutely nothing to do with the original meaning of the First Amendment. Though these statements were not the core of Reinhardt’s arguments, they had no place in the opinion whatsoever. In fact, whatever credibility his core arguments may actually have is undermined by his bizarre comments and obvious biases.
This is just another disturbing example of what happens when judges eschew the genuine exercise of interpretation in favor of political grandstanding. Reinhardt accused the majority of echoing modern political movements in their opinion, but the only politically-loaded opinion in this case is his own.