Tuesday, June 15, 2004

Pledge Reactions Dahlia Lithwick of Slate argues that the Supremes were right to find that Michael Newdow did not have standing to file his suit:


Ask a divorced or unmarried parent with primary custody of a child what was at stake in this case, and you'll get an answer that differs profoundly from the headlines: The lawyer's trick here came from Michael Newdow, who wanted to override the religious decisions made by his daughter's mother. (The two never married.) Allocating the duties and obligations of custodial and noncustodial parents has always been the province of state courts. It's a hideous job, and no one should have to do it. But the simple fact is that judges decide on a primary parent, and the other parent can either try to change that arrangement or learn to live with it. Initially, Newdow went for door No. 3. He tried to use a backdoor to force the issue first and only tried to modify the custody agreement later.


And later:


In his concurring opinion, Chief Justice William H. Rehnquist disagrees with the majority, finding that Newdow has the unfettered right to expose his daughter to his religious views. Of course he does. But Newdow cannot make ultimate decisions on yes/no matters, such as whether she can recite the pledge. For Banning's veto to mean anything, it must mean that she makes those calls.


Lithwick is one of my favorite commentators on legal issues, but she's all wet on this one. Newdow's suit had nothing to do with whether his daughter could recite the pledge. It also had nothing to do with who makes ultimate decisions on yes/no matters. Rather, Newdow alleged that his daughter was being harmed by the unconstitutional practice of her school district. His interest was in seeing his daughter protected from this practice, not to overrule any particular decision of the mother.

Keep in mind that the ruling on the standing issue was 5-3 with the supremes, and unanimous in the 9th Circuit. Clearly the standing issue was subtle and not as clear-cut as Lithwick implies. That it was cowardice, not conviction that led the Court to rule as it did comes from three sources. First, there is the opening statement of Rehnquist's concurring opinion:


The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling.


Both the tone and the substance of this statement suggest unsavory motives on the part of his fellow justices.

There is also the fact that Justice Kennedy joined with the majority in finding that Newdow did not have standing. This, along with the fact that O'Connor herself described the constitutional question as a close call, suggests that had the Court ruled on the merits they were likely to have upheld the 9th Court's ruling against the Pledge.

Finally, there is Justice Thomas' blunt assessment that if the Court were to rule in a manner consistent with its past rulings in Establishment Clause cases, they would have to uphold the 9th Circuit.

Obviously, we have no way of knowing for certain what motivated the Court to rule as it did. Cowardice strikes me as the most likely explanation.

If you're looking for something more nourishing than Lithwick's essay, have a look at Brian Leiter's commentary on the subject. His essay also contains several useful links. Here's an excerpt:


So, happily, the opinion does no damage to Establishment Clause jurisprudence (which is a big enough mess already), and, at the same time, permits the Court to avoid a pointless, election-year firestorm over religion, that would only help the current criminal occupants of the White House.

There's some encouraging news in this decision for those of us worried about the ambitions of the aspiring theocrats in the current Administration. The majority that opted for the “no standing” argument almost certainly concurred with the Laycock argument, and the original 9th Circuit argument, about the unconstitutionality of “under God” in the Pledge--that's why they opted for the procedural out. (As Chief Justice Rehnquist points out in dissenting from that portion of the majority's decision, it would have been easy enough to have reached the substantive issue, and bypass the standing issue. Note that Rehnquist concurred in the outcome only because the result of the Court's finding that Newdow had no standing was, as noted, that the original 9th Circuit decision was reversed.)