Pledge Case Update.

We here at Lex Communis are dedicated to bringing the inside story about that cruel bitch we call "the Law." This sometimes requires our dedicated professional staff to engage in antics and exploits that rival those of legendary OSS of World War II fame.

Last night it meant talking to Terry Cassidy on a cell phone while precariously perched on a bar stool at the tavern that serves as the Doyle, Penner megafirm's second office while drinking a beer. Cassidy and the first named guy go way back and they had some other dealings going on. But since Terry is the guy who will defend Western Civilization before the Supreme Court on the Newdow case - the Pledge of Allegiance case - I thought I'd try to get his thoughts on the status of the appeal after Scalia's recusal. (A development that has the dedicated professionals of Lex Communis "bummed." I mean what good is having an Italian Catholic member of the Knights of Columbus on the Supreme Court if you can't get him into the big game.)

Terry expressed confidence in prevailing, even without Scalia. While the constitutional issue pertaining to the phrase "under God" is what attracts everyone's attention, he seems to think that Newdow's case will flame-out on the standing issue. Namely, Newdow is legally a stranger with respect to the education of his daughter and the law does not permit strangers to shape or dictate educational policies. I have no opinion on the subject, although I muttered something about "taxpayer standing." In truth, I have long since forgotten what the rule is on "taxpayer standing" but it appears that Newdow doesn't have it.

Terry also advised that the case will probably be argued in February and that Ted Olson will be presenting arguments on behalf of the side of the Forces of Light and Truth. Interestingly, when I asked him whether he would make Ted Olson - Ted Olson! - flip a coin to see who went first, he indicated that he might decide to argue first and let Olson finish strong. Sounds like an interesting tactic. Terry's been to the SCUSA once before, so he's not a virgin, albeit Olson has been there scores of times.

My reference to "coin flip" incidentally was based on the infamous incident when Fresno attorney Thomas Campagne forced a coin flip about who would speak first to the SCUSA., thereby ousting University of Chicago Professor Michael McConnell. Campagne's performance was - to be polite about a fellow member of the Fresno bar - apparently not compelling, with the result that the compelled business speech is just hunky-dory.

(I am being polite - that oral argument ended up on the list of "dubious achievements" for that year. The high point of the argument went something like:

As Tony Mauro reported in the Legal Times, Mr. Campagne "spent considerable time discussing varieties of fruit to make his point that generic ads for one kind of peach or plum do not benefit those who grow other varieties." He often seemed to dwell on the facts of the case, to the exclusion of making a compelling First Amendment argument.

At one point, the discussion took a turn for the bizarre. Mr. Campagne pointed at Justice Scalia and said: "You ought to buy green plums and give them to your wife, and you're thinking to yourself right now that you don't want to give your wife diarrhea."

Startled, Justice Scalia replied: "Green plums? I would never give my wife a green plum. I've never even seen a green plum."

The bottom line is that you have to be careful with those coin tosses - do one wrong and you set the cause of liberty back a century. (Further note: Campagne is an extremely competent, bright, aggressive ag lawyer. My take on this is that he resorted to an area of his competence - agriculture, which may be an example of the Peter Principle in operation.)

Terry also feels comfortable on the First Amendment issue even with Scalia recused. Based on his thinking, he may be right. I hope so. I passed along the encouraging thought that although nobody knows him today, if he loses this one his name will be a household name in a case that is studied by law students for next one hundred years.

Update: Dahlia Lithwick has observations on the Scalia recusal and offeres the conventional opinion that the decision will be a four/four split. All things considered, I am going to going to go with the opinion of the attorney who will be arguing the case against a pro se litigant. Anyhow, I think Rehnquist and Thomas are a lock for reversal. Kennedy and O'Connor have recognized the concept of ceremonial deism. (Hopefully, there is no ukaze from the Dutchy of Grand Fenwick to provide O'Connor with international authority to change her mind. Souter is the swing, but should be fairly conservative here. Ginsburg and Breyer obviously swing the other way.

Let's hope.