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 05:35 AM | Comments (3) | law general