God Gets Off on a Technicality
Elk Grove Unified School District v. Michael A. Newdow 542 U.S. ____ (2004) has been decided. The Court ruled unanimously against Michael “I will win because I’m right” Newdow, although they were not unanimous on the reason. Ironically, all four liberals on the Court (Stevens, Souter, Breyer and Ginsburg) suddenly discovered the standing doctrine, while three of the four conservatives (Justices Rehnquist, O’Connor and Thomas) ruled that it did not apply. Only Justice Kennedy, a center-right Justice, ruled for the common-sense position that Michael Newdow, who lacks custodial rights over his daugher, also lacks standing to sue to enforce those rights that he doesn’t have.
The majority opinion, (PDF, h/t: Howard Bashman) which I agree with, will prove unsatisfying to almost everyone. It may lead to some expansion of the standing doctrine, which I think would be a good thing generally. I’m not banking on that, however, as the majority did not use the sweeping language I’d have preferred to read. Most nuisance suits under the Establishment Clause are not brought by noncustodial parents or even by custodial ones, but by random taxpayers who argue they have a right not to have “their” tax dollars spent on an allegedly unconstitutional activity. That doctrine might not be so silly if it were applied with any consistency, but it’s not. Generally, a taxpayer is not allowed to challenge an illegal expenditure, only an illegal tax. Courts have carved out a neat little exception for the Establishment Clause only, which Newdow also claimed in the alternative. I’d have liked to see that doctrine overruled; instead, in footnote 8, the court dismissed Newdow’s taxpayer standing on the grounds that he resided and paid taxes in a different school district.
So now the Pledge is back at square one, sort of. In a matter of weeks, months or, most likely, days, the ACLU is bound to find some plaintiff somewhere who is just as piously atheistic as Newdow is, and also just as eager to use his custodial child as a pawn in a national debate. Or, if they really want to rub it in, they can find some schlock who has no children at all, but happens to reside in the Elk Grove School District and probably pays at least some of the taxes he owes. Then they’ll rush into another federal or state court, lose the first round (as Newdow did), and then roll the dice to see which three judges get the case. Depending on how the lottery turns out, the Pledge will be either constitutional, unconstitutional, or splunge.
I don’t think the Supremes want to deal with this issue again, so my bet is that if the next Newdow loses on appeal, that will be the end of the road. Of course, if another ACLU wish list comes around and rules as Goodwin’s court did, they’ll have no choice but to take the case. If they do, this concurring opinion (another PDF), makes it pretty clear that Justices Rehnquist, O’Connor and Thomas will vote to uphold the Pledge (and the motto “In God We Trust,” which they also described favorably) against what they derided as an attempted “heckler’s veto.” Justice Scalia is a given, and since it will be a new case he hasn’t commented on publicly, there will be no need for him to recuse himself as he did this time around. That means that in order to prevail, Atheistic Jihad would not only have to bat 1.000 among the four liberal Justices, it would also have to persuade Justice Kennedy to reject ceremonial deism, a concept to which he has generally been friendly in the past.
Then again, all these predictions depend on the current makeup of the court. If John Kerry wins in November, God only no one knows how they’ll rule a few years and a few personnel changes down the road.
UPDATE: Matthew Hoy, Kevin Drum, Professor Bainbridge, INDC Journal, The Bonassus, Suzi, SoCalLawyer, Prestopundit, McGehee, Uncle, Captain Ed, Ms. Morality, James Joyner, Steven Taylor, Alex Knapp, e-Claire and at least three guys who actually know something about the Constitution all weigh in. Meanwhile, the normally sensible Chris Lawrence goes off the deep end and criticizes the court for applying the standing doctrine at all.
UPDATE: The Calico Cat goes even further off the deep end, likening the standing doctrine to the infamous case of Dred Scott v. Sandford. Jeebus. Time for a slavery edition of Godwin’s law.
June 14th, 2004 at 10:16 am
I’d argue that applying the “standing doctrine” makes little sense in this particular case, particularly since we all know that Newdow will move to Elk Grove Unified, file with another plaintiff, gain more custody rights, or any of a million other things. The decision is pure BS and a delaying action of the highest order. The only good thing about it is that when Scalia recused himself, we were saved from the idiotic 5-4 precedental ruling in favor of the respondents that he, Thomas, O’Connor, and Rehnquist thought was going to be result when they voted for cert in the first place. (And dollars-to-donuts, when Stevens dies and his notes are revealed, that will be the exact lineup for cert in this case.)
I’d also argue that the exact same argument you tar Newdow with could be applied to the parents who filed in Brown. After all, they used their kids as “pawn[s] in a national debate.” What horrible, despicable parents.
Though I suppose it’s nice that Souter et al. rediscovered the standing doctrine, albeit for an afternoon. And it’s fun to see the unanimous Ninth Circuit Smackdown Manoeuver every once in a while, just so our faith in the Supremes and their Infinite Wisdom can be reaffirmed.
June 14th, 2004 at 10:20 am
One nation, under technicalities
Keeping with its long history of absolutely avoiding the fundamental issues at hand and relying on nitpicky crap no one gives a shit about to make the ultimate decision regarding the fate of things, the Supreme Court ruled that Michael Newdow could not…
June 14th, 2004 at 10:53 am
First, let’s dispose of the Brown analogy. While the NAACP may have had a broad political agenda that motivated its bringing the case, the named plaintiffs did not; they were real, live, custodial parents, with real children who stood to receive a substandard education if they lost. Standing was not an issue there, nor even close. And besides, their cause was a righteous one grounded in the very basis of what the 14th Amendment was intended to do (and probably would have done all along, had they not gutted it in Plessy v. Ferguson). Newdow’s, by contrast, is simply an ego trip, based on a “constitutional” doctrine that no Congressman or Senator ever voted to enact, no Legislature ever voted to ratify, and no court had even ruled for (though some, admittedly, came close as a result of earlier, more sucessful nuisance suits brought by others).
As to the standing doctrine generally, I’m having a hard time seeing how it could mean anything at all if it does not work to bar a suit by a non-custodial parent over the objection of the custodial parent who has every legal right to do everything the non-custodial parent accuses the school of doing. The case should have been tossed out on that basis early on. It wasn’t, so that’s where the Supremes came in.
As to the vote on cert, I’d be very surprised if it was not unanimous. Does anyone on any side of this issue really think it would be acceptable for one version of the Pledge to be recited in some states, and another version everywhere else?
June 14th, 2004 at 3:27 pm
“Atheist Jihad” vs “Christian Sharia”
Hmmmm, choices, choices.
June 15th, 2004 at 8:46 pm
Submitted for Your Approval
First off…  any spambots reading this should immediately go here, here, here, and here.  Die spambots, die!  And now…  here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council links:A Tale…
June 16th, 2004 at 4:06 pm
Newdow isn’t on a jihad — it’s a crusade. Jeez, let’s get the terminology right.
Oops, did I say “jeez,” an obvious euphemism for Jesus? I did, didn’t I? Damn, I—
Well, now I can’t say “damn” either, can I, because it implies the existence of hell, which is a religious concept.
Shit.
June 16th, 2004 at 4:23 pm
I’m sure somebody prays to that, too.