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By Root 392 0

chamber evoked a Roman temple. Fluted marble columns rose on both sidewalls and a huge crimson curtain hung behind the black-robed justices. To one side of the elevated bench where the justices sat, the media section was packed. The mahogany benches in the spectator area were filled with observers who had some connection to the case or some other entrée. I sat with the students and the other general-admission guests in the very back, on cushionless bentwood chairs of the sort you might find stored away in the basement of a YMCA. Ushers and marshals controlled every movement in the crowded courtroom. A secret service agent roamed our area of the chamber, one hand holding his suit jacket slightly open.

The oral arguments began with the U.S. solicitor general making the case for leaving the Pledge as it is. Then came Michael Newdow, who had brought the original suit. An emergency-room physician with a law degree but little courtroom experience, he argued as his own advocate. Newdow put on a crackling performance, methodically building his case and parrying challenges from the justices. (“This reviewer gives him five stars,” Dahlia Lithwick later wrote in Slate. “He may still lose this appeal, but he absolutely won the day.”)

Nearly all of the justices offered different personal points of view. For example, Justice Ruth Bader Ginsburg pointed out that Newdow’s daughter had the option of not saying the Pledge. Newdow countered by saying that just holding the ritual was coercive (which, incidentally, was a point agreed upon in the Ninth Circuit decision).

Justice David Souter felt that the term “under God” was expressed in such a rote manner that it had little true meaning anymore and was “too tepid, so diluted, so far from compulsory prayer that it is beneath the Constitutional radar.” Justice John Paul Stevens mused similarly when he questioned whether “under God” had the same meaning and importance of impact as it had when it was first introduced into the Pledge.

Chief Justice William Rehnquist said he didn’t think the Pledge sounded like a prayer. Newdow agreed, but pointed out that the Ten Commandments were not prayers, yet the Supreme Court had ruled that they had no place in public schools. Newdow also pointed out that in the Bush brief, Bush himself said the Pledge constitutes a prayer. Chief Justice Rehnquist responded by saying, “Well, but he—We certainly don’t take him as the final authority on this.” That remark prompted laughter from the crowd.

The justices also expressed concern that if “under God” was unconstitutional, then other forms of government recognition of God, as in, for example, “In God We Trust,” would also be unconstitutional. As an atheist, Newdow couldn’t have agreed more and, in fact, would have desired that all references to God be removed from government ceremonies, slogans, and coinage. (Newdow would later head a group that unsuccessfully sued to remove all religious references during the inauguration ceremonies for Barack Obama.)

At one point, Newdow even trumped Chief Justice William Rehnquist. Newdow contended that adding “under God” had a divisive effect on the nation, separating unbelievers from theists. Rehnquist asked Newdow what the tally had been in the 1954 vote to adopt the “under God” phrase.

“It was apparently unanimous,” said Newdow. “There was no objection. . . .”

“Well, that doesn’t sound divisive,” Rehnquist responded with a hint of smugness.

There was a titter in the gallery.

“That’s only because no atheist can get elected to public office,” Newdow countered. The gallery erupted in laughter and applause. Rehnquist reddened.

“The courtroom will be cleared if there’s any more clapping,” he sputtered.

After the hearing, on the plaza in front of the Court, reporters crowded around Newdow. On the sidewalk below, free expression reigned. Demonstrators with signs that read “One Nation Under God” faced others carrying placards that said “Don’t Make Religion a Condition of Patriotism” and “Hi, Mom, I’m an atheist!”

Three months later, on June 14, 2004, Flag Day (the second