WASHINGTON -- The decision by Supreme Court Justice Antonin Scalia not to take part in a case challenging the constitutionality of the Pledge of Allegiance was the recusal heard round the world. Even some admirers of the caustically conservative justice commented that he had done the right thing, given his remarks last January at a "Religious Freedom Day" in Fredericksburg, Va. Sen. Arlen Specter, who wouldn't go that far, said he respects Scalia's decision to withdraw even though it creates the chance of a tie vote affirming affirm what Specter considers a wrongheaded ruling against the pledge.

The prevailing notion seems to be that Scalia transgressed what lawyers call a "bright line" when he criticized a decision of the 9th U.S. Circuit Court of Appeals holding that the words "under God" in the pledge amounted to an unconstitutional establishment of religion.

But that is a simplistic, even surreal, picture. And, in an irony that has gone largely unnoted, some critics who see Scalia's comments in Fredericksburg as undermining a fair disposition of the pledge case are themselves willing to see potential judges commit themselves on issues that might come before them. Witness the attempts last week by senators to pin down Janice Rogers Brown, a Bush appeals court nominee suspected of Scalia-like views.

Whatever one thinks of the merits of the pledge case, it is absurd that the legality of "under God" should hang on Justice Scalia's failure to govern his tongue in Fredericksburg. The flap over Scalia's comments reminded me of two observations by the columnist Michael Kinsley: that the scandal in politics is often what's legal, not what's illegal, and that "gaffes" by government officials are often the articulation of the obvious.

In petitioning that Scalia recuse himself from the pledge case, Michael A. Newdow, the atheist parent who filed the original suit against classroom recitation of the pledge, cited news reports that Scalia in Fredericksburg "apparently indicated that the 9th 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" or was "fully apprised of all the facts: about the addition to the pledge of 'under God.' "

According to Newdow, both Scalia's comments and his decision to speak at a rally sponsored by the Knights of Columbus, a Roman Catholic fraternal group, created a situation in which his impartiality could be reasonably questioned -- the test for recusal in federal law.

Fair enough, but did anyone familiar with Scalia's interpretation of the First Amendment ever believe he was a possible vote to declare "under God" unconstitutional? (Newdow, interestingly, said in an interview "I don't know. I'm going for a unanimous vote.") In lambasting Scalia for his remarks, Americans United for Separation of Church and State focused on the big picture, accurately characterizing the justice as a "persistent foe of church-state separation."

As Newdow's petition rightly points out, the Code of Judicial Conduct says that a judge should avoid public comment on the merits of a pending or impending action. Comments by a judge on a pending case are "the third rail, an absolute no-no," according to Harry Litman, a former U.S. attorney in Pittsburgh who clerked at the Supreme Court.

Yet suppose Scalia had stopped short of mentioning the 9th Circuit decision and instead simply reiterated his well-known view that liberal jurists were wrongly construing the Establishment Clause. Or what if he had provided himself with this escape clause: "Of course, when I read the briefs in this case, I might change my mind"? Such fancy footwork might have made recusal unnecessary; but would it have made Scalia any more "impartial" when it came to the First Amendment issue in the pledge case?

Americans United for Separation of Church and State has called for Scalia to recuse himself not just from the pledge case but from all church-state cases -- reasoning, correctly, that his comments at the religious freedom rally reflected an overarching legal philosophy.

That approach has the virtue of exposing the legal fiction that the Supreme Court's primary role is to adjudicate individual cases rather than to settle broad legal questions of the court's choosing. But it still reflects the notion that a justice's interpretation of a particular constitutional provision is a prejudice or a sign of "partiality" analogous to being friends with one of the parties in a divorce case. That's no truer of Scalia's view of the Establishment Clause than of Justice Hugo Black's absolutist interpretation of the Free Press Clause.

The idea that Supreme Court justices come to each new case as blank slates may be the greatest legal fiction of them all. But that didn't stop Judge Clarence Thomas from offering this assurance to senators who feared he would be a conservative ideologue on the court: "It is important for us ... to eliminate agendas, to eliminate ideologies. And when one becomes a judge ... that's precisely what you start doing. You start putting the speeches away. You start putting the policy statements away. You begin to decline forming opinions in important areas that could come before your court because you want to be stripped down like a runner."

Justice Thomas' detractors would say he has honored that promise in the breach, and that when he considers the Pledge of Allegiance case he will find it difficult to "strip down" and discard his prior thinking about the First Amendment. They will say this, and quite plausibly, even though Thomas didn't make Antonin Scalia's mistake of mouthing off on Religious Freedom Day.