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Newdow Disinformation
Yesterday the Supreme Court decided Newdow —the case where Michael Newdow, a parent, attempted to challenge whether is constitutional for a school district to include the words "under God" in a daily recitation of the Pledge of Allegiance. Newdow's challenge was unacceptable—the court jumped on a technicality and decided not to decide the case. So why have I seen so many headlines that say things like, "Supreme Court Preserves 'God' in Pledge"? Technically, this is true; the Court did not say it was unconstitutional to keep the "under God" in the pledge. However—and this is what the headline elides—the court also did not say that the "under God" was constitutional. The court simply decided not to decide the case. And as the SCOTUSBlog points out, their inaction only begs the question:
Chief Justice Rehnquist accused the majority of manufacturing a new doctrine of standing-to-sue "in order to avoid reaching the merits of the constitutional claim." It is thus clear that some Justices will be eager to see a new test case, next year or the year after that, on the issue. This fact may well put new emphasis upon the Court's future as an issue in this year's presidential campaign. The legal status of "under God" is one of the most highly visible constitutional questions of the day, and many voters may be encouraged to believe that one or more newly appointed Justices will be in a position to decide the outcome when a new test reaches the Court next year or the year after that.
As the Court stands now, Scalia, Rhenquist, O'Connor, and Thomas have clearly stated they think "that it is constitutional for a school district to include the words "under God" in a daily recitation of the Pledge of Allegiance." Are there any court-watchers out there who know where the other Justices might stand? I added a request to the analysis over at L-Cubed for some feedback from those who know much more than me, but other thoughts are welcome.
An aside: How awesome is the SCOTUSBlog, anyway? Wouldn't it be great if Lexis, Westlaw, Findlaw, and other legal research tools started providing easy links to this sort of concise analysis of every Court decision?
See also: Yahoo full coverage of the decision.
Posted June 15, 2004 05:35 AM | law general
the headlines have been driving me nuts, too. i can't really see many voters making an issue out of this--it'll be long forgotten come november. (unless some cases make it up through the system by september/october... then i shall eat my words.)
Posted by: em at June 15, 2004 07:43 AM
I was very annoyed by the media coverage of this decision. Many said "Court sidestepped the real issue."
And, yes, technically I guess you could say that. But, if Newdow didn't have standing, they couldn't really reach the merits (unless they wanted to pull a Justice Marshall). Sure, they could blather on in dicta and that becomes pretty persuasive in subsequent cases, but I don't know if I would actually use "sidestepped" to describe what happened. Because if Newdow had no standing, anything the Court said after reaching that conclusion would not be law anyway. If he has no standing...there is no case to decide.
The good news is that since they DIDN'T decide the merits, someone else who DOES have standing can still hope to get it in front of the Court for a "real decision." Right?
Posted by: Cinnamon at June 17, 2004 03:11 AM
right. someone who actually has custody of a kid that refuses to say it.
Posted by: monica at June 17, 2004 07:42 AM
