Socialism's Racism, Segregation, & Regimentation
One of the big myths about government schools is that children
gain good "socialization." The socialist pledge of allegiance is more
proof that the socialization of government schools is so bad that government
schools should end. This webpage helps students in government schools
to stop repeating the pledge of allegiance to the flag, and to end all government
school policy for it. http://rexcurry.net/stopthepledge.html
The children in the picture at the bottom of this page saluted
the U.S. flag with the original socialist salute and pledge that was written
by the socialist Francis Bellamy to promote socialism through the most socialistic
institution: government schools (socialized schools). The National
Socialist German Workers’ Party was aware of the U.S.’s salute when it adopted
When the U.S. Constitution was written, people in the
U.S. received private educations. Bellamy lived during the time when
schools were becoming socialized heavily by government in the U.S.
It was a view later shared by the National Socialist German Workers' Party.
The government schools were racist and they mandated
segregation by law. Every day, the segregated children were forced
to attend racist government schools where they were forced to collectively
perform a degrading salute and a pledge to a flag written by a socialist
to glorify government. Any child who did not perform the socialist
pledge was expelled. If parents rejected government schools in favor
of the many better alternatives, some government school administrators would
still harass the families. It was behavior that was later shared by
the National Socialist German Workers' Party. While the National Socialist
German Workers' Party presided over the 1936 Olympics in which Jesse
Owens set multiple records, Owens’ family and friends faced government
schools in the U.S. that mandated segregation and daily straight-arm salutes
to a flag with a pledge written by a socialist to glorify government.
Bellamy, belonged to a group known for "Nationalism,"
whose members wanted the federal government to nationalize most of the domestic
economy. He saw government schools as a means to that end. It
was a view later shared by the National Socialist German Workers' Party.
The current hand-over-the heart pledge was adopted after the National Socialist
German Workers' Party tried to impose socialism upon the world.
The United States of America is one of the only nations
since Germany (under the National Socialist German Workers' Party) that
has designated an official pledge to its flag.
To this day, children are still ostracized and persecuted
in government schools that still hold a daily ritual where children stand
for a robotic recitation of a pledge and salute written by a socialist to
And no one disputes the invidious influence of a century
of socialism's racism and segregation mandated by law in government schools,
where it was taught as an official policy. Even after the socialist
segregation ended the socialist schools continued racist and vicious behavior
with forced busing, removing children from their neighborhoods and families,
forcing them to government facilities across town, and destroying
their local neighborhoods and the support that was provided.
Today, the government owns and operates most schools
and there is constant political debate about how the government should handle
myriad non-educational issues within the schools. Imagine if the government
owned and operated most churches and there was constant political debate
about how the government should handle myriad non-religious issues within
government churches (dress codes, cell phones, drug testing, sex ed, discrimination,
forced busing to integrate churches, etc). Would the media and the citizenry
advocate that the issues be solved by privatizing the churches, removing
government from the churches, and championing the separation of church and
state? Apparently not. If the popular reasoning regarding schools is followed,
the media and citizenry would merely advocate that socialized churches adopt
various policies that are the most "popular" or considered to be the most
"reasonable." Other people, instead of creating the First Amendment,
would instead advocate a voucher program where every child would receive government
funding for his church. The same disaster would result.
Many people have been mistreated and segregated by
government schools. They have constantly struggled to correct government
schools. Imagine if everyone who had been mistreated or segregated by government
schools had instead advocated the separation of school and state, and had
withdrawn from government schools, and had switched to private schools or
had formed their own private schools and used the many better alternatives.
They would have done better than they have done by staying in government
schools. They would have academically surpassed the people they left behind
in government schools. They would have enjoyed true freedom, including true
religious freedom, even in their schools. Their actions would have been
much more historical, revolutionary and inspiring than the constant struggle
to correct government schools. It would have been a story as historical,
revolutionary and inspiring as was the separation of church and state, and
the end of government churches.
It's not too late for the separation of school and
state. The separation of school and state is as important as the separation
of church and state.
To learn more visit http://RexCurry.net
Click below for a larger
One of the big myths about government schools is that children gain good
"socialization." The socialist pledge of allegiance is more proof
that the socialization of government schools is so bad that government schools
should end. This webpage helps students in government schools to
stop repeating the pledge of allegiance to the flag, and to end all government
school policy for it. http://rexcurry.net/stopthepledge.html
Hundreds of children were expelled from government schools (socialized
schools) for refusing to repeat the socialist pledge of allegiance to the
Even after parents rejected government schools in favor of the many better
alternatives, some government school administrators still harassed the families.
The Superintendent of government schools in Minersville, Pennsylvania
had required students to recite the Pledge of Allegiance since World War
I. None had ever objected until in 1935 Lillian and William Gobitas refused
to stand and recite the Pledge. They knew that the socialist pledge
Lillian Gobitas, then a seventh-grader, later recalled in an interview
that she had been a popular student until her refusal. Lillian Gobitas said
"...the students were awful. I really should have explained to the whole
class but I was fearful. I didn't know whether it was right to stand up or
sit down. These days, we realize that the salute itself is the motions and
the words. So I sat down and the whole room was aghast. After that, when
I'd come to school, they would throw a hail of pebbles and yell things like,
Here comes Jehovah! (because she was a Jehovah's Witness) They were just
jeering at me...."
Some time later, Lillian saw two girls pass by on the street. They were
once her close friends. She heard them say, "Just think, we used to be friends
with her!" Lillian and William were expelled from government school for their
disobedience and their father sued the school board. The family won at trial
and a federal appeals court upheld the decision, but then the school board
appealed to the Supreme Court. In a 1940 decision written by Justice Felix
Frankfurter, the Court ruled that requiring the Gobitas children to salute
the flag or be expelled did not violate their free speech right. He wrote
that exempting them might make other children less loyal to government. When
Lillian heard the Court's decision on the radio, she felt cold all over.
Like other children who refused to glorify socialism, the Gobitas family
would just have to endure.
After the Supreme Court's ruling against them, Lillian and William Gobitas
never returned to government schools. They used the many better alternatives.
The United States of America is one of the only nations since Germany
under the National Socialist German Workers' Party that has designated an
official pledge to its flag.
To this day, children are still ostracized and persecuted in government
schools that still dictate a daily routine of all children standing for
a robotic recitation of a pledge and salute written by a socialist to glorify
The court case of Frank Herbert Wonschik
v. U.S., argued that the jury selection process was impermissibly tainted
by the trial judge's request that all potential jurors stand and recite
the Pledge of Allegiance prior to jury selection. Furthermore, that bias
also transgressed the Establishment Clause and the Free Exercise Clause
of the First Amendment to the U.S. Constitution. http://rexcurry.net/pledgewonschik.html
This case presents the highest court with the opportunity
to liberate Americans from the Pledge of Allegiance in government schools
and functions, and could begin the end of government schools.
The Pledge was written in 1892 by Francis Bellamy.
Bellamy was not a beautiful friend of freedom. He was freedom’s foe
and a self-proclaimed national socialist. Also in the Society of
The Pledge of Allegiance is an example of how close
the U.S. came (and is still coming) to the National Socialist German Workers’
Party. The Department of Homeland Security.
How many justices spent the first 12 years of their
lives robotically chanting the Pledge of Allegiance collectively at the
ring of a bell every day on cue from the government? Pavlov’s lap
dogs of the state. How many of their children did so or are still
doing so and what effect would that have on bias?
It is a pledge to the flag, a pledge to the republic
and a pledge to the pledge.
One reason the scarey socialist past of the pledge in Elk Grove is because
one of the parties was a socialist and is philosophically unwilling to
expose socialism’s horrors.
Publik skool edumacation at a government indoctrination center (hereafter
William H. Rehnquist, Chief Justice of the United
States, was born in 1924. He has three children. He attended
Stanford University and Harvard University.
John Paul Stevens, Associate Justice, was born in
1920. He has four children. He attended the University of Chicago,
and Northwestern University School of Law.
Sandra Day O’Connor, Associate Justice, was born in
1930. She has three sons. She attended Stanford University.
Antonin Scalia, Associate Justice, was born in 1936.
He has nine children. He attended Georgetown University and the University
of Fribourg, Switzerland, and Harvard Law School.
Anthony M. Kennedy, Associate Justice, was born in
1936. He has three children. He attended Stanford University and the London
School of Economics, and Harvard Law School.
David Hackett Souter, Associate Justice, was born
in 1939. He attended Harvard College and Magdalen College, Oxford, and Oxford
University and Harvard Law School.
Clarence Thomas, Associate Justice, was born in 1948.
He has one child. He attended Conception Seminary and Holy Cross College,
and Yale Law School.
Ruth Bader Ginsburg, Associate Justice, was born in
1933. She has a daughter and a son. She attended Cornell University
and Harvard Law School, and Columbia Law School.
Stephen G. Breyer, Associate Justice, was born in
1938. He has three children. He attended Stanford University, and Magdalen
College, Oxford, and Harvard Law School.
By adding 18 years to each birth year we approximate the year that each
justice was graduated from high school, to wit:
Justice John Paul Stevens, 1938 (born 1920).
Chief Justice William H. Rehnquist, 1942 (born 1924).
Justice Sandra Day O’Connor, 1948 (born in 1930).
Justice Ruth Bader Ginsburg, 1951 (born 1933).
Justice Antonin Scalia, 1954 (born March 11, 1936). He attended
high school at Xavier High School, a Catholic military academy in Manhattan.
He is fortunate that he did not attend a government high school.
Even so, some non-government schools mimic government schools, even to
the extent of chanting the Pledge of Allegiance. It could not be determined
if Justice Scalia attended middle school and elementary school in
government schools that chanted the pledge or in non-government schools
that mimicked government schools. Justice Scalia was nine years of
age at the end of WWII and might very well have still been saluting the
flag with a straight arm salute. Some schools continued the practiced
well after WWII.
Of course the same questions could be asked of all
Justice Anthony M. Kennedy, 1954 (born 1936).
Justice Stephen G. Breyer, 1956 (born 1938).
Justice David Hackett Souter, 1957 (born 1939).
Justice Clarence Thomas, 1966 (born 1948).
Some Justices may have attended government schools
during the time of Minersville School Board v. Gobitas, 310 U.S. 586 (1940)
(1940), and that was a time when they were compelled by law and by the Gobitas
supreme court decision to chant the pledge. Gobitas was not reversed
until 1943 in West Virginia Board of Education v. Barnette 319 U.S. 624 (1943).
In the 1930s, the National Socialist German Workers'
Party (Nazis) passed laws that required everyone to pledge allegiance, similar
to many U.S. laws that have tried to require school children to recite
the pledge. Jehovah's Witnesses believed that people who enjoy reciting
government pledges are people who worship government. Jehovah's Witnesses
were officially banned for refusing to join the raised palm salute of the
National Socialist German Workers' Party in schools and at public events.
Many of the German Witnesses were imprisoned in concentration camps.
In the 1940's, before the phrase "under God" was added
to the U.S. pledge of allegiance, Jehovah's Witnesses refused to recite
the pledge of allegiance in school on the grounds that it constituted worship
of government. They hoped for a different response than they had met from
the National Socialist German Workers' Party. In 1940, in Gobitas, the
Supreme Court ruled that a government school could expel those children
for refusing to salute the flag.
What did the justices think about all of that as they
lived through it? What do they still think about it (essentially
the same government sponsored pledge in government schools daily)?
In 1940, U.S. Supreme Court Justice Felix Frankfurter
was freaking about France falling to the National Socialist German Workers’
Party when Frankfurter wrote the Gobitas decision that allowed schools
to expel students who refused to say the pledge of allegiance. Frankfurter
was very concerned about the progress of the National Socialist German
Workers’ Party in the war and Frankfurter believed it was important for
the country to come together and for everyone to be loyal.
Yet, Frankfurter’s decision allowed compelled collective
pledges by the government in government schools that were using a straight-arm
salute similar to the National Socialist German Workers’ Party salute,
for a pledge of allegiance that was written by a National Socialist in
the U.S. who was a member of the "Nationalism" movement and a vice president
of its socialist auxiliary group, and shared the views of the National
Socialist German Workers’ Party as its members wanted the federal government
to nationalize most of the American economy.
It is fortunate that the U.S. Supreme Court reversed
the Gobitas decision 3 years later. In Barnette the Supreme Court
reversed itself and decided that school children may not be forced to stand
and salute the flag.
Despite the reversal, the U.S. retained government
schools that robotically chanted the socialist’s pledge, some still used
the straight-arm salute, and they imposed racist and segregated classes well
into the 1960’s and beyond, with socialized schools poisoning hearts and
What if some justices had been compelled to chant
a pledge supporting government racism and government segregation and government
schools to impose it (e.g. I Pledge allegiance to government requiring
racism and segregation....) for all of their lives? And what if some justices
were then were asked to rule that the Pledge to government racism was unconstitutional?
And then what if the Brown case came before them? Would someone ask
whether the justices who had chanted the pledge to racism could decide
Brown without bias? Would someone point out that the justices were
raised pledging to socialist compelled racism and segregation via government
schools. Would someone point out that the same pledge was still
the current pledge that many of them probably still recite on occasion?
Is that why the Brown decision only offered desegregation
of government schools, and missed the correct decision, and did not go
far enough: ending government schools, removing government from education,
reversing the government schools that the Pledge of Allegiance promoted
and the government imposed racism and segregation that socialized schools
One admirable result of the Gobitas case and every
Supreme Court case regarding government schools is that many people remove
their children from government schools. And that is the real solution to the
pledge debate and all other issues: reduce government and remove government
from education. As Libertarians say: The separation of school and state
is as important as the separation of church and state.
The Gobitas kids were right: The Pledge of Allegiance
is worship of the government. The original single right-arm salute
was no less worshipful idolatry then if the left arm had been extended also.
That is the mentality that led to its adoption by the National Socialist
German Workers’ Party. The right hand over the heart is no less worshipful
idolatry then if the left hand were crossed over the right, in another
clearer position of prayer.
The Pledge arose from the belief in an omnipotent,
omniscient government with God-like qualities with no limits on its size
or power. And that lesson is still being taught in government
schools today, and the government’s size and power grows and grows.
Jurors should not deify the government. Jurors
should defy the Pledge. They should finish what the heroic Gobitis
kids started and the Court should too. The Pledge of Allegiance is desecration
of the flag.
Libertarians like to say they oppose "the cult of
the omnipotent state." There are many parallels between the legal arguments
made by Jehovah's Witnesses and the libertarian catchphrase.
And the topic in hand is not a vanilla legal issue,
the topic is the “Pledge of Allegiance.” How many justices have already
pledged their allegiance to the flag, the very issue in this case?
How many pledged their allegiance, to rule against the defendant’s issue,
while robotically chanting for the first 12 of the most formative years
of their lives? Can any justice declare his/her independence
instead of pledging his/her allegiance in this case? Or will
they declare the Pledge of Allegiance to have been a “quaint period piece,”
in order to assert that it had no meaning in their daily chants on cue from
the government and that it has no meaning today in government schools,
chanted upon the ring of a bell, on cue from the government daily?
If we were living in Germany during the National Socialist German Workers’
Party would we expect a different result there in a case like this, or different
rationalization to uphold a pledge of allegiance?
It would be odd if the Court began each meeting, including
the meeting to discuss this case, with a Pledge of Allegiance, pledging
to support the opposing party in this case. Or if oral arguments occurred
in this case and they were preceded by the Court pledging allegiance to
the opposing party. If the Court did exactly what the jurors
were cowed into doing in this case.
The Pledge is a reminder of how close the U.S. came
(and is still coming) to mirroring the National Socialist German Workers’
And how well did the Pledge do in creating bias? Today
schools are prisons with assembly line searches, and the same applies to
the outside with assembly line searches, papers required to be carried,
your papers produced on demand, the Department of Homeland Security. New
taxes for sports stadia and sports entertainment. we have social security
and socialist slave numbers, and the court case the switch in time humiliating
disgrace. It has never been reversed. See the article “My socialist
slave number is 262-00-6302” by Rex Curry at http://rexcurry.net/ssnunconstitutional.html.
None of the above government actions have anything
to do with protecting individuals and their property from violence and theft.
All of the above are examples of government initiating violence and theft
against individuals. If the government’s antidisestablishmentarianism does
not end, then the police state will grow.
Some say disloyal people hate the pledge. The
anti-american ones are the ones who pay homage to the national socialism
of Francis Bellamy and his hatred of liberty and disloyalty to capitalism.
Of course, most people are ignorant of the Pledge’s history. Ignorance
is not an excuse. It is another reason why government schools should
not exist and are unconstitutional.
And it is more than a pledge to a flag, it is a pledge
“to the Republic for which it stands” -so it is a pledge to the opposing
party in Wonschik’s case and there is no corresponding Pledge of Allegiance
to Wonschik by the jurors nor by the judge or prosecutor.
How can anyone claim that there is no actual meaning
or import of bias in the above? How can anyone claim that there is
not the APPEARANCE of bias in a pledge to the opposing party by the jurors,
the judge, the prosecutor and by the justice who hears the appeal?
Jurors have the right to pardon a defendant, or to
nullify bad laws. The pledge is another attempt by the government to
make the jurors think that they cannot pardon the defendant, cannot nullify
the law, and that they must submit and to do the government’s bidding, just
as the jurors were taught to do in government schools.
It is relevant to note that the National Socialist
German Workers’ Party had been in existence since 1920 (with electoral breakthroughs
in 1930 and dictatorship in 1933, and WWII in 1939 with the Union of Soviet
Socialist Republics starting as its ally). In 1940, in Minersville School
Board v. Gobitas, the Supreme Court ruled that a government school could
expel children for refusing to perform the straight-arm socialist salute
to the U.S. flag. About three years later (1943), in West Virginia
Board of Education v. Barnette the Supreme Court reversed itself and decided
that school children may not be forced to stand and salute the flag.
All of the justices presumably used the straight-arm salute, especially
if all who attended government schools. Some were using the straight arm
salute as WWII began when the National Socialist German Workers’ Party and
the Union of Soviet Socialist Republics invaded Poland in 1939 as allies.
What did they think then? Many people did not immediately comprehend
the horror of socialism. Did they feel a kinship or familiarity due
to the similar salute and the fact that the salute originated with a national
socialist in the U.S.?
The recusal is similar to asking how the justices would rule if they
had been the Supreme Court under the National Socialist German Workers’
Party and this case and others like it awaited decision. Would the
Court rule for the defendant, for the Jehovah’s witnesses, for the people
who would eventually die? Or would the ruling be more like Gobitas?
And would that ruling be reversed three years later, as in Barnette?
That is why the written rules regarding recusal recite an appearance.
How can one know what effect robotic chanting has on a person? Are
they little Manchurian candidates? the bell rings they like Pavlov’s lapdogs
of the state. Will they claim that the pledge means nothing and then, when
anyone anywhere says “stand for the pledge of allegiance” the little voice
inside the head screams “Achtung!” and they leap to their feet and salute
(straight-armed or reformed?). Which ones exercise his/her right to
remain silent during pledges today? Which ones have ever had the guts to
solitarily exercise his/her right to be left alone in a crowd of robotic
What do they think now? What do they think about the government
taking over education, which is no where mentioned in the constitution and
which was one of the goals of the author of the Pledge of Allegiance?
What do they think about state laws that promote a collective robotic chanting
of the pledge on cue from the government daily in government schools? What
do they think about the social security system and socialist slave numbers
that are given to infants to track their movements, residences, employment,
finances and to tax them their entire lives? A government that grows
and grows no matter who is in office.
No one has any idea what they were thinking at that time, whether they
were performing the salute, aware of the salute of the National Socialist
German Workers’ Party, aware that the Pledge of Allegiance, the origin
of the salute, was written by a National Socialist in the U.S. who wanted
government to take over all schools, eliminate all of the better alternatives,
and nationalize most of the economy.
If the Justices had been schooled in a true free school (a non-government
school) a similar conflict and a similar need for recusal could arise.
For example, some justices attended Harvard as if it were grade school,
and a case arguing that a defendant was prosecuted by the U.S. government
for shooting at Harvard, and if every morning while the Justices attended
Harvard, a bell would ring and all the justices would rise and stretch out
their right arm to the flag of Harvard and robotically pledge allegiance
“I Pledge Allegiance to the flag of Harvard , and to the education for which
it stands, one school, under God, indivisible, with Liberty and Justice
for All.” Easily the defendant would make the same motion. It
is fortunate that I know of no private schools that participate in such
an oddball ritual, other than those private schools that mimic the government
schools and the Pledge of Allegiance. or victimized, especially if the same
pledge were performed by the trial judge and jurors in his trial.
If the Justices had been schooled in a true free school (a non-government
school) a similar conflict and a similar need for recusal could arise.
For example, some justices attended religious oriented schools, and a case
arguing that a defendant was prosecuted by the U.S. government for shooting
at that religious institution, and if every morning while the Justices
attended the religious school, a bell would ring and all the justices would
rise and stretch out their right arms to the flag of the religion and robotically
pledge allegiance “I Pledge Allegiance to the religious flag, and to the
ideology for which it stands, one church, under God, indivisible, with Liberty
and Justice for All.” Easily the defendant would make the same motion
for recusal based on a conflict. Of course, there are religious schools
in which people participate in worshipful religious practices, and some
might even mimic the government schools and the Pledge of Allegiance.
If a defendant was prosecuted in a case as described in this paragraph then
there would be a conflict and grounds for recusal of any justice who attended
any particular religious school that was shot at or victimized, especially
if the same pledge were performed by the trial judge and jurors in his trial.
Similar points hold for home schooling. If a justice was home-schooled
by his own mother, and a case arguing that a defendant was prosecuted by
the U.S. government for shooting at the justice’s mother, and if every morning
while that Justice was home-schooled, his/her mother would ring a bell
all the justice would rise and stretch out his/her right arm to the family
flag and robotically pledge allegiance “I Pledge Allegiance to my mother,
and to the familial loyalty for which she stands, one home-school, under
God, indivisible, with Liberty and Justice for All.” Easily the defendant
would make the same motion for recusal due to a conflict. There is
probably no home school that has such an oddball ritual, other than those
home schools that mimic the government schools and the Pledge of Allegiance
or victimized, especially if the same pledge were performed by the trial
judge and jurors in his trial.
In that sense, the same argument about bias for the jurors and trial
judge also applied to the Supreme Court justices hearing this case.
In the previous refusal in the Newdow case, Justice Scalia recused himself
for remarks that Justice Scalia had made about the phrase “under God.”
The argument for recusal here is even more compelling for any justice who
chanted the pledge for years. “Under God” is only two words
and Scalia’s remarks justifying recusal were few. Justices who recited
the pledge in school and elsewhere not only repeated the two words, they
repeated the entire pledge, and it IS A “PLEDGE OF ALLEGIANCE.” It
is daily robotic remarks much more repetitive and indoctrinating than the
remarks the recused Justice Scalia. “I pledge allegiance to the flag,
of the United States of America, and to the republic for which it stands.....”
How can one claim that there is no conflict or need for recusal for any justice
who has spent years robotically chanting his bias en masse and on cue from
We need justices who did not attend government schools, or who did not
participate in schools that had a daily robotic chanting on cue from the
government. Although non-government schools can recite
the pledge it seems to be rare, and of course, it is not compelled or cajoled
by law, nor done on the cue of government.
It is different from pledging to uphold the constitution. Which
would mean no government schools. Etc.
Does the supreme court start with a pledge of allegiance?
When a socialist says “liberty and justice for all” he means he wants
to rob and enslave you.
According to reliable news accounts (Exhibit A), Justice Scalia was “the
main speaker at an event for Religious Freedom Day” held on January 12,
2003. There, Justice Scalia apparently indicated that the Ninth Circuit
decision in the instant case was based on a flawed reading of the Establishment
Clause. Yet it is highly unlikely that the Justice had ever read any of
the briefs in the case, and – although his knowledge base is prodigious
– it is doubtful that Justice Scalia has been fully apprised of all the
facts related to Congress’s Act of 1954. Under such circumstances – where
he prematurely indicated that a lower court’s decision was wrong in a case
he would likely hear – one might certainly reasonably question his impartiality.
The fact that he chose to give these remarks at an event in which the
Knights of Columbus played a sponsoring role (Exhibit B) is especially noteworthy.
The Knights of Columbus is the organization that “led the effort to officially
include the words ‘under God’ in the Pledge of Allegiance to the American
flag.”http://www.kofc.org/knights/history/history.cfm. In fact, since Justice
Scalia made his comments, the Knights of Columbus has submitted an amicus
brief in the hope of overturning the Ninth Circuit’s decision. Exhibit
C. In that document, it is claimed that “American concepts of freedom flow
from an authority higher than the State.”Brief Amicus Curiae of the Knights
of Columbus That idea is, of course, found nowhere in the text of the Constitution.
Yet it is a foundational concept of the brief which, of necessity, turns
atheists such as Newdow into “outsiders, not full members of the political
community.” Certainly Justice Scalia was aware of the Knights’ hosting of
the Religious Freedom Day activities, and it is likely that he is also cognizant
of the role that organization played in effecting the change in the Pledge.
That he deliberately chose to allude to the Ninth Circuit’s ruling in such
a venue gives further cause to reasonably question his impartiality in this
It should first be noted that Justice Scalia’s voluntary, disapproving
statements about the lower court’s ruling – in a case obviously destined
to come before him – is at odds with the Code of Conduct for United States
Judges. Canon 3(A)(6) of that Code states (in pertinent part) that “A judge
should avoid public comment on the merits of a pending or impending action.”
Justice Scalia’s comments on January 12, 2003 unequivocally violated that
Under current case law, the totality of these circumstances supports
recusal. Liteky v. United States, 510 U.S. 540 (1994) – authored by Justice
Scalia, himself – reviewed the meaning of 28 U.S.C. § 455, especially
in view of the “massive changes” made in 1974. It was specifically noted
that, “what matters is not the reality of bias or prejudice but its appearance.
Quite simply and quite universally, recusal [i]s required whenever ‘impartiality
might reasonably be questioned.’” Moreover, subsection (a) “covers all
aspects of partiality”
Justice Kennedy’s concurrence also made the point that recusal is mandatory
[T]he central inquiry under § 455(a) is the appearance of partiality,
not its place of origin;
Disqualification is required if an objective observer would entertain
reasonable questions about the judge’s impartiality. If a judge’s attitude
or state of mind leads a detached observer to conclude that a fair and impartial
hearing is unlikely, the judge must be disqualified. Indeed, in such circumstances,
I should think that any judge who understands the judicial office and oath
would be the first to insist that another judge hear the case; and
Section 455(a) … addresses the appearance of partiality, guaranteeing
not only that a partisan judge will not sit, but also that no reasonable
person will have that suspicion.
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) –
another Supreme Court case that considered 28 U.S.C. § 455 in depth
– similarly emphasized that “a violation of § 455(a) is established
when a reasonable person, knowing the relevant facts, would expect that a
justice, judge, or magistrate knew of circumstances creating an appearance
of partiality, notwithstanding a finding that the judge was not actually
conscious of those circumstances.” Along these lines, the lower courts have
[T]he judge’s actual state of mind, purity of heart, incorruptibility,
or lack of partiality are not the issue. … The standard is purely objective.
The inquiry is limited to outward manifestations and reasonable inferences
drawn therefrom. In applying the test, the initial inquiry is whether a
reasonable factual basis exists for calling the judge’s impartiality into
United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
It should be emphasized that it is not only the statements Justice Scalia
has made that are of concern. His conscious decision to appear as the “featured
speaker” at an event sponsored by the Knights of Columbus – the religious
organization that initiated the drive to place “under God” into the Pledge
– and to use that forum to decry the Ninth Circuit’s ruling is of enormous
moment. In fact, it was “the judge’s expressive conduct in deliberately
making the choice to appear in such a forum at a sensitive time to deliver
strong views on matters which were likely to be ongoing before him” that
resulted in the Tenth Circuit’s determination that the District Judge in
Cooley should have recused himself.
The foregoing in no way suggests that a judge or justice, even in an
extrajudicial setting, is prohibited from enunciating his views on legal
matters. On the contrary, “expressions of opinion on legal issues are not
disqualifying” (Leaman v. Ohio Dep’t of Mental Retardation & Developmental
Disabilities, 825 F.2d 946, 950 (6th Cir. 1987) (note 1), and “[a] judge’s
views on legal issues may not serve as the basis for motions to disqualify.”
(United States v. Conforte, 624 F.2d 869, 882 (9th Cir. 1980)). However,
Justice Scalia’s challenged actions go far beyond such an enunciation. In
January 2003, he indicated that he has already applied his Establishment
Clause analysis to the case at bar and reached his conclusion before ever
reading the briefs or hearing the arguments. That is what provides the grounds
The Court has noted the importance of “ensur[ing] that our deliberations
will have the benefit of adversary presentation and a full development
of the relevant facts.” Bender v. Williamsport Area School Dist., 475 U.S.
534, 542 (1986). Here, a justice has indicated that he is prepared to rule
in a given manner absent such deliberations, precisely the situation for
which 28 U.S.C. § 455 (a) was promulgated. If “[t]he test is whether
an objective, disinterested, lay observer fully informed of the facts underlying
the grounds on which recusal was sought would entertain a significant doubt
about the judge’s impartiality,” Parker v. Connors Steel Co., 855 F.2d 1510,
1524 (11th Cir. 1988), then it would seem that the following would lead
to exactly that doubt:
The constitutionality of the words, “under God,”
in the Pledge of Allegiance is at issue;
A justice – fully aware that the case would
soon likely appear before him – accepted a speaking invitation sponsored
by the organization that “led the effort to officially include the words
‘under God’ in the Pledge of Allegiance;”
At that venue, the justice indicated – before
the first petition ever reached his court – that the case was wrongly decided
in the court below.
“[T]he appearance of partiality is as dangerous as the fact of it.” Conforte,
624 F.2d at 881. Because “a judge is under an affirmative, self-enforcing
obligation to recuse himself sua sponte whenever the proper grounds exist.”
United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989), Justice Scalia
should recuse himself from deliberations in this litigation.
For the foregoing reasons, it is respectfully suggested that Justice
Scalia recuse himself from any consideration of the instant litigation.
Under penalty of perjury, I affirm that the foregoing Motion is made
in the good faith belief that the facts are true, that the arguments are
appropriate, and that recusal by Justice Scalia will best serve the interests
of justice and the integrity of the judiciary.