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Contrary to my expressed preference in the case, the Supreme Court decided to duck the case by pretending that Michael Newdow lacked standing to bring the case in the first place, a decision that essentially concedes (at least in the mind of this attitudinalist) that the Court couldn’t muster five votes to keep “under God” in the pledge without using the bogus “standing” issue. Indeed, Stevens’ justification for the 8–0 ruling (Scalia recused himself) amounts to a non sequitor:
When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.
How, exactly, does the question of who has custody over Mr. Newdow’s daughter affect whether or not the pledge of alliegance is constitutional? Whether or not the child’s mother approves of the pledge is irrelevant to the legal issue at hand.
One suspects, however, that this holding action won’t settle the argument for good, as I’d imagine Mr. Newdow will find another athiest parent with uncontested custody, or a high-school student of majority age, to bring a similar case in the near future.
Update: Stephen Green, Eugene Volokh (via Anti-Climacus), Jacob Levy, Mark of Memphis Red Blogs, Steven Taylor, and Spencer of Mediocrity’s Co-Pilot also have posts on the decision.
I think the interesting political question here is why the Supremes granted certiorari in the case; the standing issue certainly could have been decided without an oral argument, and perhaps even without briefs (the case simply could have been reversed and remanded). I don’t want to post too much about my thoughts, because I think this might be a good discussion topic in Con Law in the fall when we talk about the structure and powers of the Court, even though the content of the semester focuses on topics other than civil liberties (except economic regulation, which is covered).
Incidentally, the Volokh Conspiracy no longer shows up on the sidebar when it gets updated, even though I track every weblog updates service under the sun. Grrr.
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8 comments:
I agree that standing could have been decided without granting cert—indeed, used as a rationale for denying cert. Of course, doing that would have let the ruling stand, perhaps?
Standing is a legitimate issue, since the Court is only supposed to deal with cases in controversy. Still, it’s hard to justify it in this case, given that the plaintiff is the biological father and pays child support. Of course he has an interest in how the child is raised.
Denying cert would have let the ruling stand in the 9th Circuit.
However, the Court could have reversed and remanded the lower-court decision without oral argument (and maybe even without requesting briefs), which would have had the effect of nullifying the 9th Circuit ruling. That they didn’t suggests there were political ramifications between the scheduling of oral argument and the decision… a ramification that probably had to do with Scalia’s recusal.
It doesn’t. That’s not what the standing doctrine is for.
Duh. It’s for ducking cases the courts don’t want to deal with, like its cousin, the “political question” doctrine. (I’m sorry, I haven’t had the three years of brainwashing by lawprofs who wax poetic about all the judicial flim-flam erected by the legal discipline to hide the edifice of politicized decision-making by judges.)
That said, I never thought I’d see the day when conservatives would celebrate the abrogation of non-custodial parents’ rights (or narrowing the “standing doctrine” in general). When the athiest is the custodial parent and the committed Christian is the non-custodial one, I wonder how many will take the opposite tack. (I guess they’ll be reduced to arguing solely on the basis of Pascal’s wager.)
I concur that this is a dodge.
It has always seemed odd that Newdow was suing on behalf of his daughter who didn’t object to the phrase in question.
Regardless, I see nothing to celebrate here, as it just means that the game has been reset and that another suit will be filed. Hence, all of this was an utter waster of time and money.
Quite frankly, the entire affair is silly. I don’t see the harm to the atheistic to utter a phrase they think is fantasy, nor do I see a great exulation of God because of the current iteration of the Pledge.
Live by the brainwashing, die by the brainwashing. At least the “case or controversy” requirement is grounded in the plain language of the Constitution. That’s more than I can say for the basis of Newdow’s lawsuit, which was a somewhat reasonable extension of many patently unreasonable cases (vis a vis the plain language of the First and Fourteenth Amendments) that had been decided in the past.
The political quesiton doctrine is a different beast altogether. For the most part, I share your distaste for that rule, which unlike standing, is largely a figment of the courts’ imagination. Then again, many cases that currently get kicked under the political question doctrine would have to be tossed out anyway, as a violation of the separation of powers.
I disagree with the last commenter: it can be downright humiliating to be forced to say things you not only don’t believe, but actively reject. That being said, I’m glad SCOTUS punted on this one, for purely political reasons (i.e. no wedge issue in November). I’ve posted more here if you’re interested:
Fair enough, but no one is being forced to recite the Pledge. If they were, that would raise a different First Amendment problem for foreigners, Jehovah’s Witnesses, or anyone else who may find the Pledge objectionable, with or without the reference to God.