Eleven years ago, the US Supreme Court struck down as
unconstitutional the offering of a prayer at public high school
graduation ceremonies. At the time, Justice Antonin Scalia
complained in a dissent that the majority's reasoning could render
the Pledge of Allegiance vulnerable to similar attack as an
impermissible establishment of religion under the First Amendment.
"Since the Pledge of Allegiance has been revised ... to include
the phrase 'under God,' recital of the Pledge would appear to raise
the same establishment clause issue as the invocation and
benediction [struck down in the graduation case]," Justice Scalia
wrote in 1992. "Must the Pledge therefore be barred from the public
Now, more than a decade later, Scalia's question is at the heart
of a case that could immediately elevate the Supreme Court's current
term, which begins Monday, into a historic session.
The court has not yet said whether it will take up a California
case challenging the constitutionality of the Pledge in public
schools. But an announcement could come as early as Monday.
"If the court takes [the Pledge case] on the merits, it will
dwarf anything else the Supreme Court will do this year," says
Steven Shapiro, legal director of the American Civil Liberties
As the nation's highest court begins its new term, legal analysts
say the court's docket already includes a number of potentially
important cases. Among them are disputes that could reshape how
American elections are financed, how election-district boundary
lines are drawn, and how criminal suspects are interrogated.
Legal scholars will be watching to see if the court's
conservative wing continues to push its federalism revolution by
aggressively policing the balance of power between states and the
national government. They will also pay careful attention to how the
justices respond to alleged violations of civil liberties in the war
Despite the potential for blockbuster cases dealing with the
Pledge of Allegiance or terrorism, at least so far, legal analysts
say, there are no mega-cases on the court's docket that might rise
to the level of last year's landmark affirmative-action and gay
"This is looking like something of a breather term compared to
last term," says Christopher Landau, a Washington lawyer and former
law clerk to Justices Scalia and Clarence Thomas.
But with roughly one-third of the docket yet to be filled and no
shortage of legal controversies in the nation, such assessments
could change in an instant.
Among the more important cases already on the docket is a church-
state dispute from Washington State involving a lawsuit challenging
the state's refusal to provide public scholarship money to those
studying to join the clergy. …