Newdow's performance came as a surprise to many lawyers and probably to the justices as well. Chief Justice William Rehnquist tried to trip up Newdow by forcing him to admit that that the congressional vote to add "under God" to the pledge in 1954 had been unanimous. When Rehnquist said that a unanimous vote didn't sound very "divisive" to him, Newdow countered by saying that an atheist could never be elected to Congress, underscoring his point that seemingly innocuous religious recitations like "under God" can marginalize and exclude nonbelieving minorities.

The normally silent Supreme Court gallery broke into applause, and a fuming Rehnquist threatened to clear the courtroom. After the argument, several justices reportedly joked among themselves: Was the applause coming from atheists who supported Newdow or from Christians who were cheering the idea that an atheist could never be elected to Congress?

Outside the courtroom, Solicitor General Ted Olson, who argued against Newdow on behalf of the Bush administration, and former Independent Counsel Ken Starr, who represented Newdow's ex-girlfriend, were both effusive in their amazed praise of Newdow's presentation.

Lawyers who know Newdow better were even more surprised.

Tom Goldstein, an experienced Supreme Court lawyer whose firm publishes the essential SCOTUSblog, talked with Newdow often about the pledge case in the months before the oral argument. Lawyers like to say that a man who represents himself has a fool for a client. Goldstein saw some of that in Newdow, at least before the oral argument began. "He's so passionate about the family law stuff," Goldstein said. "He's over the moon about it, and he admits it."

What he doesn't do is control it. In one family law proceeding, Newdow equated the intercourse that led to the conception of his daughter to "date rape." In a conversation last week, he spoke passionately of the injustice he sees when a man happens to impregnate a promiscuous woman. If a woman "sleeps with 57 men, that's never the issue," he says. "But the fact that [one man's] sperm cell happened to fertilize the egg and [another] guy's didn't? He's guilty and the other guy isn't. It's stupid. Neither of them intended to have a child. It was just sex."

Public statements like the "date rape" comment "couldn't be less helpful or more counterproductive" to Newdow's cause, Goldstein said. "But it's how he feels, and there isn't a screen between his emotions and his mouth when it comes to the wrong he's convinced the family law system has committed."

Goldstein feared Newdow's emotions about family law would spill over into his presentation before the justices. He had an opening for it; as Monday's ruling showed, the court saw questions about Newdow's custodial rights as a path to avoid ruling on the substance of his case. "I had talked with him beforehand, and I thought he was going to argue the case [in the same way that] he feels about the case," Goldstein said. "He needed to improve a lot, but he was very willing to listen, and he was unbelievably prepared. It's fair to say he's a brilliant guy ... But like all of us, he's a little blinded by his faith in his position."

But Goldstein said that Newdow understood what he needed to do -- both stylistically and substantively -- by the time he appeared before the eight remaining justices. In oral argument, he was careful not to argue for too much; rather than arguing that the Supreme Court ought to strip its Establishment Clause jurisprudence back to "make no law" simplicity, he argued that the "under God" language in the pledge is different -- that its genesis was more distinctly religious, that its effect is more coercive -- than other invocations of God in public life.

"What Michael Newdow did very effectively, other than being a smart guy, is that he was willing to develop the best possible argument to try to win in the court," said Georgetown's Lazarus. "The hardest thing for people to do when they represent themselves is that they think that, when the justices ask them a question, they're being asked to testify as to what their views are. And that's not true. What good lawyers do is come up with the best possible argument they can in a case. That's what Newdow did, and it was very impressive. He was willing to ask for less than what might be his ultimate aim."

In the end, of course, it wasn't enough. With the current makeup of the court -- and the outcry that would come if "God" were stricken from the pledge -- the case was probably unwinnable, no matter who argued it. As Goldstein explained, "What [Newdow] was not able to do -- and I don't know that anybody could do -- was deal with this court's sense of, 'Oh, give us a break. We've been doing this a while, and it doesn't cause a real problem, and if we rule for you, the country is going to go apeshit.'"

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