Amanda Butler has a first-hand report on the oral argument of Elk Grove Unified School District v. Newdow (a.k.a. the Pledge of Allegiance case). Like Amanda, I think Newdow has the better argument here; however, I doubt that will be enough to sway 5 justices to strip “under God” from the pledge.

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).