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Supreme Court Watch

June 14, 2004 at 12:00 AM EDT


MARGARET WARNER: Both sides said they were disappointed in today’s Supreme Court ruling on the Pledge of Allegiance because it sidestepped the question of whether the “under god” phrase is constitutional. Here to explain what the court did is Marcia Coyle of the “national law journal.” Welcome back, Marcia. Well this was a long-awaited ruling. Briefly reminds us of the facts in this case.

MARCIA COYLE: All right. Michael Newdow who is a lawyer as well as a doctor sued the Elk Grove Unified School District in California about two years ago because it had a policy requiring teachers to lead the students in the Pledge of Allegiance at the start of each day. His daughter was an elementary school student in that school district. The school district and the Bush administration argued that he did not have a legal right to bring this suit and also argued that the Pledge of Allegiance, which Mr. Newdow said amounted to unconstitutional, religious indoctrination, was not a violation of the Constitution. It was a ceremony, an historical practice that simply recognized our nation’s founding.

MARGARET WARNER: Mr. Newdow is an atheist, correct?

MARCIA COYLE: Yes, he is.

MARGARET WARNER: It’s worth noting that only eight of the nine justices participated in this decision, in these different opinions. Justice Scalia did not. Why not?

MARCIA COYLE: That’s correct. Well, Justice Scalia had made comments during a speech in Virginia about the ninth circuit ruling and Mr. Newdow’s position in the case. So he basically criticized the ninth circuit’s ruling which struck down the school district’s policy on the pledge here. That amounted to a conflict of interest. He was asked to recuse himself by Mr. Newdow and he did.

MARGARET WARNER: So all eight justices agreed to set aside the ninth circuit ruling, all eight of them did but for very different reasons. Five of them did it saying Mr. Newdow just didn’t have standing. Explain what that concept is legally and how it applied in this case.

MARCIA COYLE: All right. Standing was really… has always been the 800-pound gorilla in this case. Our judges, our federal judges are not elected; they’re not representative of the people. They have lifetime tenure so there have to be some checks on the power that they use in deciding cases. One of those checks or limits is in the Constitution, Article 3 says that our judges have to decide only cases in controversies.

For example, if you sue, you have to have been injured and the court has to have a remedy for that particular injury. Then there’s another kind of standing that figured in this case today. It’s called prudential standing. And that’s basically, for example, a court may decide generally that you cannot sue to vindicate the rights of third parties. Prudential standing was the main question in Mr. Newdow’s suit.

MARGARET WARNER: And it involved the status of his custody of his daughter.

MARCIA COYLE: It did. This case came up during a custody battle between Mr. Newdow and his daughter’s mother whom he was not married to. And throughout the case, there was a question of how much custody did Mr. Newdow really have. There was a California court order that said that he shared custody of his daughter but the mother had the legal authority to make ultimate decisions about her daughter’s education.

MARGARET WARNER: If these five justices – as you said — this issue has been before the court — the question of his custody. Why would they even agree to take the case if they were going to just dismiss it that he didn’t have standing?

MARCIA COYLE: First of all the answer to the standing question was clear at the time the justices took the case. Also remember it only takes four justices to agree to hear a case. There may have well have been four justices including Justice Scalia who wanted to take this case.

MARGARET WARNER: So that takes us to the three justices, Rehnquist, O’Connor and Thomas who felt otherwise, felt he did have standing and wanted to uphold the pledge. What was their argument?

MARCIA COYLE: Well, they basically addressed the merits question. Was this practice unconstitutional? They all approached it in different ways coming to the same conclusion that it was constitutional. Chief Justice Rehnquist followed the bush administration’s line that this is really ceremonial deism much like what we have on our coins “in God we trust.” There’s nothing in the establishment clause that prevents that.

Justice O’Connor applied all the different tests that have… the Supreme Court has announced under the establishment clause and found also that this phrase does not violate the constitution. Interestingly, Justice Thomas said if the court were faithful in applying all of its establishment clause rulings, the pledge would fall. But he thinks the court’s establishment clause jurisprudence is wrong and he called for a reworking of it.

MARGARET WARNER: Can we infer anything about how the five justices who dismissed it on the standing issue feel?

MARCIA COYLE: This is speculation obviously, but I think it was clear that in this case there were three justices who would uphold the pledge. They were unable to get two more votes to get to the magic five. On the other side it was clear that there were not five votes to strike down the pledge. I think we know from the result that there were five votes to address the standing question. Going forward we know there are four justices who would uphold the pledge. The question is where is that magic fifth? It may not be that difficult to get. Based on the oral arguments some justices seemed to be leaning that way. We won’t know until the next case.

MARGARET WARNER: Is there another case in the pipeline? It’s been reported there are three cases coming from three different states so I think eventually the court may face it again.

MARGARET WARNER: Marcia, thanks so much.

MARCIA COYLE: You’re welcome.