At 08:48 PM 6/14/2004 -0700 Doug Pensinger wrote: >> Actually, the answer is that with Scalia recused they had a 4-4 vote on >> all other outcomes. > >I could be way out to lunch but I find it unlikely that they wouldn't just >say that they were unable to make a decision. I find it much more likely >that they would avoid making a decision that is certain to be extremely >unpopular even if it was proper.
According to Supreme Court Historians itis common in cases where there has been a recusal or absence for other reason to try and find the narrowest grounds that provide for a decision. Indeed, this is considered one of the essential duties of the Chief Justice - to try and find such narrow grounds that provide for a narrow decision rather than leaving things in limbo. As for your theory, I would point out that three Justices wrote a concurring opinion upholding the Pledge on Constitutional grounds. Scalia would surely have been a fourth vote for that opinion. JDG
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