Supreme Court Drama

Mr. Newdow Goes To Washington And Wows "Em"

I'm not one of those late-night, Washington, D.C., party animals. Never­the­less, I am also not what you might call a "morning person." Before 7 a.m., it's best not to ask me questions re­quiring more than one-word answers. So, what was I doing on my cell phone calling a member of Americans United's National Advisory Council at 5 a.m. on Wednesday, March 24?

I contacted Professor Barbara Mc­Graw to get vital information. Barbara had been standing in a line outside the U.S. Supreme Court building since 3 a.m. Like me, Barbara is a member of the Supreme Court bar and, like me, she wanted to make sure she would get a seat to watch the historic arguments in Elk Grove Unified School District v. Newdow, a case testing whether public schools can sponsor recitation of "under God" in the Pledge of Allegiance.

The seating gallery for bar members has a limited number of spaces and Barbara was determined to be there. She had come all the way from Moraga, Calif., and had been warned by court staff that the line could be very long. When I saw her the day before at our office, she had volunteered to fill me in on the line's length if I would call her around 5.

This was important information. It would answer such vital questions as, "Can I grab another half hour of sleep?" and "Should I shower with a cup of coffee in hand so I can rush to the court and get in line immediately?"

As it turned out, at 5 a.m. the "line" was two people Barbara and Supreme Court scholar Peter Irons. At 5:30, they were joined by another hearty attendee. By 6:15, I was on the road, and the line was up to five or six. At 6:40, when I arrived, the line was up to 8, including a few staffers from the Anti-Defamation League.

(Religious Right activists were apparently sleeping in something I would encourage them to do for lengthy periods every day. Set those clocks for noon!)

William Suter, the affable clerk of the court, came out a few times to remind everyone of the rules. He told us that those of us known to him could expedite the review process, but he was careful to add that this would not guarantee a better seat. He then looked at me and said, "So, Mr. Lynn, why is the line so short?"

I responded, "I may have put the fear of God in potential attendees." But he was quick with a rejoinder, saying, "Or, maybe the fear of the devil!"

A few minutes passed, then a familiar face appeared: Jay Sekulow, chief attorney for Pat Robertson's American Center for Law and Justice. He had a few colleagues with him.

When we actually got into the building, we were told our seats were now guaranteed and that it was safe to go grab a bite in the court's cafeteria. Jay graciously offered to buy me breakfast (so I immediately picked up an extra cinnamon bun). As we chatted over our food, Jay mentioned that one Supreme Court employee who frequently speaks to civic groups about how the high court operates often uses the two of us as examples of fierce adversaries who still display civility and professionalism in our personal dealings.

By 9:30 we were all seated. Since the Pledge argument was scheduled for 11, we all had to sit through the first argument an arcane discussion of zoning rules for "adult businesses." (That's as descriptive as anybody got.) Even for a lawyer, the minutiae of zoning laws can be stupefying. In fact, it took me 10 minutes to figure out whose side the first advocate was representing.

Eventually the big moment arrived. Michael Newdow, the California emergency-room doctor and law school graduate who had brought the case on his own, moved up to the counsel table alone. Across from him sat Terence Cassidy, attorney for the school district, and Solicitor General Theodore Olson, representing the Bush administration.

Cassidy and Olson went first, and then Newdow took the podium. He did a brilliant job, mixing passion with scholarship in one of the finest and most coherent presentations I've seen there in years. So much for critics who said Newdow would fall apart during his first presentation to the Supreme Court.

After the argument, a battery of print reporters, radio microphones and television cameras assembled outside on the high court portico. Because Americans United had sponsored a friend-of-the-court brief and had been active in the case in many other ways, I offered analysis at the news media event.

"I hope the justices now understand," I said, "that it was wrong in 1954 for Congress to change an affirmation of patriotism into a religious loyalty oath."

Later in the day, Jay and I hit some of the cable news shows like CNN's "Lou Dobbs Tonight." We had our passionate debate, and in the admittedly unscientific online poll, our side beat his 54 percent to 46 percent an improvement over a survey reported by the Associated Press that morning that found an 89-11 percent split in favor of "under God" in the Pledge.

We probably won't know if our side will also win at the Supreme Court until late June. No matter which way the court rules, Michael Newdow, an atheist, has already won an important victory: His eloquent presentation before the justices erased the crude caricature of non-believers that the Religious Right holds out before the American people.

It truly was an historic day at the court. I was pleased to be there and proud that Americans United could play a role in this important case.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.