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Jeffrey Toobin: More Pledge challenges likely

Jeffrey Toobin
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The Supreme Court kept God in the Pledge of Allegiance, for now.
Supreme Court
Religion and Belief
Pledge of Allegiance

(CNN) -- On Monday, the Supreme Court ruled that a California father could not challenge the Pledge of Allegiance. (Full story)

In issuing such a decision, the court avoided the broader question of the separation of church and state. CNN anchor Wolf Blitzer discussed the case with CNN senior legal analyst Jeffrey Toobin.

WOLF BLITZER: What do you make, Jeff, of the decision basically on a technicality to throw this out?

JEFFREY TOOBIN: Well, this is the way the justices sometimes duck really controversial issues, is they decide procedural grounds rather than engaging on the substance of the legal issue. Here, the result is the same either way.

The Pledge of Allegiance stands as it stood. "Under God" is in -- remains in the Pledge of Allegiance. But there is no majority opinion for the court saying that "under God" is OK. So the case ends sort of with a whimper rather than a bang.

BLITZER: So would you anticipate that atheists and others who don't like the phrase in there to find a better father or mother, if you will, to try to revive this case before that 9th Circuit in San Francisco?

TOOBIN: I expect that you will see another challenge to "under God" in the Pledge of Allegiance. However, it's worth noting that liberals, conservatives, judicial scholars across the spectrum thought this 9th Circuit decision was really out to lunch. It's very unlikely that another court will say that the Pledge of Allegiance is unconstitutional in its current form.

So, yes, there will be more challenges. And it is possible they will succeed. But I think the odds overwhelmingly favor the position that the chief justice expressed today, which is that "under God" is not a violation of the separation between church and state.

BLITZER: Normally, would this kind of decision by the Supreme Court in Washington influence the -- those judges on the 9th Circuit right now if it comes up to them once again? In other words, what will be the impact, practically speaking, on a lower court?

TOOBIN: Well, I think there will be a significant impact, because here you have three justices, three of the five necessary for a majority, saying that the 9th Circuit position was completely wrong. And you can assume that Justice Scalia, who didn't participate, would probably join with them, given their usual inclinations.

So I think a court is going to be very reluctant, unless they really want to just stick it to the Supreme Court, to say, look, those three justices are wrong and we're counting on the other six to rule in our favor. I think this was certainly a shot across the bow of the 9th Circuit by those three justices, and it's going to be, at least in my opinion, very unlikely that another court strikes down "under God" as the 9th Circuit panel did.

BLITZER: It's interesting that Justice Scalia recused himself from this decision, but is not recusing himself from the Dick Cheney matter which is still before this court, whether or not he should release those -- all of the information involving the energy task force that he chaired early on in the Bush administration.

TOOBIN: It is interesting because Justice Scalia gave a speech where he pretty directly ridiculed this 9th Circuit opinion, and that was a pretty understandable recusal. Of course, in his now famous duck hunting trip with Vice President Cheney, he said there was no discussion of anything pending before the Supreme Court, and he said he didn't have to recuse himself.

But Justice Scalia, as usual, is in the center of the action. At least today he was in the center of the action by stepping out of it.

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