June
27, 2002 8:45 a.m. Law
Under the Ninth
Welcome
to our world.
kay,
so the Ninth Circuit Court of Appeals has declared the use of the words
"under God" by public schoolchildren when reciting the Pledge
of Allegiance to be an affront to the Constitution. Big deal. The Ninth
Circuit says a lot of things, few of which, thank God (!), are taken seriously
outside their own chambers. This court has demonstrated time and again
that its view of the Constitution is at odds with that of most of America
and indeed with that of the Supreme Court. Wednesday's decision, in Newdow
v. U.S. Congress, et al, was of course greeted by howls of torment
from across the political spectrum, prompting even Tom Daschle to label
the ruling as "plain nuts." Even the hard-lefties know not to
back this horse when there are votes at stake. We will soon be bombarded
by images of politicians of every stripe, many of whom would have been
hard-pressed to recall the words to the Pledge of Allegiance until today,
tenderly reciting it at the merest opportunity. C-SPAN will probably broadcast
a pledge-a-thon from the steps of the Capitol, with those congressmen
and senators up for reelection trying to elbow their way to the front.
I
will leave it to others more steeped in the law to expose the folly of
the court's decision. I'm sure that as I write this someone is pounding
away at his keyboard and will soon produce a jeremiad of such passion
and unassailable legal thinking that it will humble the responsible justices
should they ever deign to read it. Wait, I take it back. These judges
cannot be humbled, such is the level of their arrogance. When the case
is eventually overturned by the Supreme Court, as Ninth Circuit cases
frequently are, the architects of this decision will no doubt sulk in
their chambers in San Francisco (where else?) and console each other by
reminding themselves how much brighter and more enlightened they are than
their putative superiors in Washington. "That Scalia thinks he's
so damn smart . . ."
In my own perverse
way I welcome this decision. But before you send the angry e-mail accusing
me of embracing paganism, read on. In ruling as it did this three-judge
panel of the Ninth Circuit has brought national focus to the burden borne
by those of us who work in law enforcement in the nine western states
over which the court has jurisdiction. This is only the latest in a series
of decisions that illustrate the peculiar brand of jurisprudence issuing
from this most peculiar of circuit courts.
I offer as an example
United States v. Knights, a Ninth Circuit case that denied
police officers a valuable tool in their efforts against crime and villainy.
In 1996, the Napa County Sheriff's Department suspected Mark Knights and
Steven Simoneau of committing numerous acts of vandalism against facilities
owned by the Pacific Gas and Electric Company. The damage caused by this
vandalism ran into the millions of dollars. After identifying Knights
as a suspect, sheriff's deputies learned that he was on probation for
a drug offense, and that one condition of his probation was that he "[s]ubmit
his . . . person, property, place of residence, vehicle, personal effects,
to search at anytime, with or without a search warrant, warrant of arrest
or reasonable cause by any probation officer or law enforcement officer."
This is a routine condition placed on probationers in California, and
one that I have relied on frequently in making the streets safe for a
flourishing democracy.
Deputies conducted
a warrantless search of Knights's home and discovered evidence linking
him and Simoneau to the vandalism. The defendants were indicted in federal
court but the district-court judge excluded the evidence, ruling that
the search had been for "investigatory" rather than "probationary"
purposes and was therefore violative of the Fourth Amendment. A three-judge
panel of the Ninth Circuit concurred. (Two of those judges, Stephen Reinhardt
and Ferdinand Fernandez, also heard the Newdow case. Reinhardt
is married to Ramona Ripston, president of the Los Angeles chapter of
the ACLU.) The opinion is notable for the self-congratulatory floridness
of its prose. A telling passage: "In making this decision we need
not rely on some resident numen or wait for Fulgora to light our way.
We can, instead, rely upon the wisdom of the ages and upon the sagacity
of the numerous Ninth Circuit judges who have written before us. If we
do not heed all of that history and learning, who will?"
Who, indeed? Questioning
the Ninth Circuit's sagacity, past and present, Chief Justice Rehnquist
wrote for a unanimous Supreme Court in reversing the decision. Not even
Ruth Bader Ginsberg could bring herself to endorse the lower court's foolishness.
Rehnquist's opinion is peppered with little barbs such as this: "In
Knights's view, apparently shared by the Court of Appeals . . ."
In the genteel, oak-paneled world of the higher courts this is tantamount
to asking, "How did these pinheads ever pass the bar in the first
place?"
Anyone with several
hours on his hands can search the Internet for other examples of how the
Ninth Circuit has thrown wrench after wrench into the cogs of law enforcement
only to have them removed months or years later by the Supreme Court.
Newdow is only the latest and most stark example of a much larger
problem: There is a small but powerful coterie of judges serving in our
nation's courts who are disdainful of the values most Americans hold dear,
and who will shamelessly subvert legislative intent and clear legal precedent
to serve their ends.
In the coming days
defenders of the Newdow decision will of course be all over the
op-ed pages and cable talk shows referring to "the tyranny of the
majority." All well and good, but is the tyranny of the minority
any better?
—
Jack Dunphy is an officer in the Los Angeles Police Department. "Jack
Dunphy" is the author's nom de cyber. The opinions expressed are
his own and almost certainly do not reflect those of the LAPD management.
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kay,
so the Ninth Circuit Court of Appeals has declared the use of the words
"under God" by public schoolchildren when reciting the Pledge
of Allegiance to be an affront to the Constitution. Big deal. The Ninth
Circuit says a lot of things, few of which, thank God (!), are taken seriously
outside their own chambers. This court has demonstrated time and again
that its view of the Constitution is at odds with that of most of America
and indeed with that of the Supreme Court. Wednesday's decision, in Newdow
v. U.S. Congress, et al, was of course greeted by howls of torment
from across the political spectrum, prompting even Tom Daschle to label
the ruling as "plain nuts." Even the hard-lefties know not to
back this horse when there are votes at stake. We will soon be bombarded
by images of politicians of every stripe, many of whom would have been
hard-pressed to recall the words to the Pledge of Allegiance until today,
tenderly reciting it at the merest opportunity. C-SPAN will probably broadcast
a pledge-a-thon from the steps of the Capitol, with those congressmen
and senators up for reelection trying to elbow their way to the front.
