Brian Leiter, who passes himself off as a law professor at University of Texas, offers this pearl of wisdom on the Pledge of Allegiance case:
Predictably, Rehnquist and Thomas thought the inclusion of “under God” in the Pledge was constitutional, and O’Connor, sadly, joined Rehnquist in this conclusion. (Their arguments don’t bear much examination–it is a variation on the ever popular “since we’ve let slide the imposition of religion in public life on all these other occasions, we should let it slide now” argument, that always comes up on occasions like this.)
OK, so the good professor doesn’t like the notion that Supreme Court Justices should blindly apply past precedent simply because it is precedent. Fair enough, if that rule were applied with any consistency. Unfortunately, it’s not. The very next sentence of the same paragraph reads:
Thomas, in solidifying his status on the lunatic fringe, argues that the Establishment Clause shouldn’t even apply to the states.
In other words, Justices Rehnquist, Thomas and O’Connor were all wrong to uphold that the Pledge on the grounds that past court decisions have upheld similar “impositions,” yet Justice Thomas is a looney because he doesn’t apply the same reasoning to past court decisions holding that states are “Congress.” Either the good professor is drawing a distinction that is really, really deep, or ….