After the Ninth Circuit's decision in the Pledge of Allegiance case, many people faulted the Ninth Circuit. Others, myself included, said that the Ninth Circuit's decision was a perfectly plausible reading of the Supreme Court's precedent (even if not necessarily the one that we ourselves would take), and the fault, if there was fault (as I thought there was), lay with the Supreme Court, not the Ninth Circuit.

In his concurrence in the judgment today, Justice Thomas took this very view. Justice Thomas voted to uphold the Pledge of Allegiance on the merits against an Establishment Clause challenge. (The majority didn't reach the issue, but rejected the case on procedural grounds.) Justice Thomas is also probably the Justice with the broadest view of state and local governments' power to use religious speech and religious symbols.

Yet he specifically said that the Ninth Circuit's decision was "based on a persuasive reading of [the Court's] precedent." In fact, Justice Thomas said: "I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional." And while he would reverse some of that precedent, that is a luxury that the Ninth Circuit did not have. So Justice Thomas must think that the Ninth Circuit was quite right, and did what it had a legal duty to do.