VOLUME TEN NUMBER 1 When the Minority Needs to Be Heard by Roberta K. Glassner, Esq. Imagine you are on your town’s baseball team of 20 players. The mayor of the town has just named someone to be your new coach. In this made-up situation, your team gets to vote on whether or not it wants the mayor’s choice. To get the job, the coach needs to get a “yes” vote from a majority of the team, in this case at least 11 of the 20 players. FALL2005 The U.S. SuprSupremeeme Court and the Road to Becoming a Justice by Roberta K. Glassner, Esq. justices should sit on the Court. The U.S. Congress makes that determination. John G. Roberts Jr. was recently sworn in as the 17th The number of justices on the U.S. Supreme Court Here’s how the team breaks down: chief justice of the U.S. Supreme Court. As chief justice, has changed six times. The first Court, under President the majority of the team, 12 players, Roberts, along with the other eight justices of the Court Washington, consisted of six justices. Between 1807 are all for the mayor’s choice. Eight will interpret the law based on the rights, freedoms and 1837, three more justices were added, bringing players are dead-set against him. and protections set forth in the U.S. Constitution. the total to nine. In 1863, during the Civil War, under The eight players, who do not want How did Chief Justice Roberts get to his place President Abraham Lincoln, Congress voted to increase the mayor’s candidate, know that on the Court? Let’s take a look at how the U.S. the Court to 10 members. if a vote were held on the spot the Supreme Court works and the road one takes In 1866, after the Civil War, during Andrew Johnson’s proposed coach would get a solid to be appointed a U.S. Supreme Court justice. presidency, Congress passed legislation that reduced the majority vote of 12 and the job number of justices to seven. The last change to the Court would be his. U.S. Supreme Court finds a home came in 1869 under President Ulysses S. Grant, when Can a minority of eight prevent In 1790, the first session of the U.S. Congress raised the Court’s size to its current a vote being taken? If the rules of Supreme Court was held in the Merchants number—nine. Several attempts since then the U.S. Senate were applied to your Exchange Building in New York City. Six to change the number of justices have team, it could. The minority players justices, appointed by President George been defeated. could filibuster in the hope of bringing Washington, sat on that first Court with about a compromise. John Jay as chief justice. For many years the Selecting a new justice justices were required to “ride circuit,” Article II, Section 2 of the U.S. Talk, talk, talk hearing cases twice a year in the different Constitution gives the president the Since the 2004 election, 55 judicial districts of the country. The Court authority to appoint justices to the U.S. Republican senators have formed would later move to Philadelphia. When Supreme Court “with the advice and the majority party in the 100-member Washington, D.C. became the nation’s capital, consent of the U.S. Senate.” When a vacancy U.S. Senate. The minority is made the Court met in various locations in that city. occurs on the U.S. Supreme Court, the president up of 44 Democratic senators and Finally, in 1935, the present Supreme Court presents his staff with a list of possible one independent senator. building was completed, and it became the candidates to fill the opening. The staff then In the U.S. Senate, Rule XXII permanent home of the U.S. Supreme Court. conducts research into each candidate’s permits members of the minority experience, legal writings, speeches and personal party to rise to their feet on the How many justices? background to determine the most qualified person. Senate floor and talk, or filibuster, While the U.S. Constitution calls for the establishment Once the president makes his choice, a written for hours or days to block a majority of a U.S. Supreme Court, it does not specify how many vote. Filibuster is derived from a Dutch CONTINUED ON PAGE 3 word meaning “pirate.” A filibuster is an attempt to block legislation by prolonged speaking. The idea behind Pledging Allegiance: One Nation Under... What? the process of filibustering is that by Pledging Allegiance: One Nation Under... What? taking up time and delaying the by Roberta K. Glassner, Esq. and Jodi L. Miller On Flag Day, June 14, 1954, which was at the height passage of a bill or the confirmation of the Cold War, the U.S. Congress added the phrase of a judicial nominee, the minority In the summer of 2002, a California court declared “under God” to distinguish the U.S. from what it called and the majority can come to a that the Pledge of Allegiance, which is recited at the “godless Communism.” At the time, some Americans compromise. In the alternative, by beginning of every school day in this country for close opposed this newest holding out, the minority can also to half a century, was unconstitutional. This decision by addition, believing that force the majority to withdraw the the Ninth Circuit Court of Appeals stirred up a storm it unnecessarily and offending legislation or nominee. of anger and protest that still rages today. unconstitutionally When a senator embarks on a introduced religious filibuster, he or she is not limited to The Origin of the Pledge belief into a purely discussing the relevant legislation or The original Pledge of Allegiance, written in 1892 patriotic expression. judicial nominee. He or she can speak by former Baptist minister Francis Bellamy, made no about anything and everything. In the reference to God. Bellamy wrote the Pledge for this Where the 1930s, Louisiana Senator Huey Long, country’s celebration of the 400th anniversary of controversy began a Democrat, recited Shakespeare and Columbus’ discovery of America. The Pledge of Dr. Michael read recipes for 15 hours straight Allegiance was designed to be a patriotic oath Newdow, an atheist to block passage of legislation he commemorating, in Bellamy’s words, “our national and the father of felt was unfair to the poor. history… the Declaration of Independence… the a second-grader in Constitution… and the meaning of the Civil War…” a California public CONTINUED ON PAGE 2 CONTINUED ON PAGE 4 Pledging Allegiance CONTINUED FROM PAGE 1 school, did not want his daughter reciting the Pledge of schools, would allow the voluntary recitation of the Allegiance with the words “under God” in it. He filed a phrase and would also allow recitation of the pledge in lawsuit against the state of California on the grounds other official settings. that “under God” represents the government’s endorsement of religious belief and has no place in Taking it to the Supreme Court This publication was made possible through funding public school. In his claim, Dr. Newdow asserted that his The case eventually made its way to the U.S. from the IOLTA Fund of the Bar of New Jersey. daughter is injured when forced to listen to her teacher Supreme Court, where Dr. Newdow, who also holds a lead a pledge that declares the existence of God when law degree, argued his case himself. Solicitor General Angela C. Scheck EXECUTIVE EDITOR her father believes He does not exist. Theodore B. Olson defended the constitutionality of In a 2-1 decision, a three-judge panel of the Ninth the Pledge of Allegiance. Jodi L. Miller Circuit Court of Appeals determined that when the During oral arguments before the justices of the EDITOR phrase “under God” is recited in a public school, it Supreme Court, it was suggested to Dr. Newdow that is a violation of the separation of church and state the “under God” phrase had over the years attained a Editorial Advisory Board guaranteed by the establishment clause of the First civic, broader meaning and included virtually everyone. Stuart M. Lederman, Esq. Amendment to the U.S. Constitution. The “I don’t think I can include “under CHAIR establishment clause says, “Congress shall make God” to mean “no God,” Dr. Newdow no law respecting an establishment of religion or answered. “I deny the existence of God John J. Henschel, Esq. prohibiting the free exercise thereof…” and government needs to stay out of Louis H. Miron, Esq. Judge Alfred Goodwin of the Ninth Circuit Court this business altogether.” Carole B. Moore of Appeals wrote in his opinion, “The establishment Solicitor General Olson argued the Steven M. Richman, Esq. clause guarantees, at a minimum, that government “under God” phrase in the Pledge did Thomas A. Zeringo may not coerce anyone to support or participate in not rise to the level of religious expression religion or its exercise or otherwise act in a way and indicated that the Ninth Circuit Court New Jersey State Bar Foundation which establishes a state religion or religious misunderstood the Pledge of Allegiance. He went faith, or tends to do so.” on to say that the phrase is a “civic and ceremonial Board of Trustees After the ruling became the shot heard round acknowledgement of the indisputable historical fact that John J. Henschel, Esq. the world, former Attorney General caused the framers of our Constitution and the signers PRESIDENT John Ashcroft asked for a review of of the Declaration of Independence to say that they had the case by the entire 11-judge the right to revolt and start a new country.” Olson Ellen O’Connell, Esq.