March 24, 2004
Newdow's Standing, Take 1
by Nick Morgan
March 24, 2004 05:22 PM
I'm reading over the Newdow (pledge case) briefs now to get a feel for the standing arguments asserted--and once I review the ugly doctrine of standing covered a few weeks ago in Federal Courts, I'll probably post my thoughts on the justiciability of Newdow's claim. Until then, I thought it was interesting that Justice Rehnquist was quoted saying that the issues of the case:
certainly have nothing to do with domestic relations.
Justice Souter seems to agree; the Washington Post writes "Justice David H. Souter said that Newdow could argue that his interest in his child 'is enough to give him personal standing.'"
I don't know the context of Rehnquist's statement (anyone find a trascript or audio file yet?) but if the Court accepts this view in the standing context, it looks like Newdow will have his case decided on the merits. Briefly, standing is an Article III requirement that focuses on the party's entitlement to have his case heard in a federal court. Newdow's basic challenge is to establish a "personal injury" that is "distinct and palpable," as opposed to merely abstract or conjectural. Newdow's lack of custody over his daughter is the basis of the defendants' arguments that he has no redressible right to be adjudicated, but if the Court thinks custody is irrelevant to his "personal injury" then it will be much easier for Newdow to establish an injury that is at least individual to him, as opposed to the host of atheists around the country who have no children in public schools where the pledge must be recited.
You can write on the back of a matchbook what I know about domestic relations. And, although I took Fed Courts from one of the more prominent academics in the field today, we barely covered standing as it applies to child/parent relationships... only enough to say this was an example of standing.
Off the cuff, I would think Newdow's Due Process interest in raising his child would be sufficient unless there was a restraining order against him or something exceptional of that magnitude.
If Justice Scalia had not recused himself, he might have told Newdow during oral argument: "You have no standing, so sit down!" Now keep in mind that there must be a case or controvesy under the Constitution for the Supreme Court to have jurisdiction. In addition the party asserting a claim must have standing. The effect of this is not only to reduce the work of the Supreme Court but also to permit egregious and outrageous and unconstitutional laws to remain on the books.
It would be unfortunate, but typical if this Court did not throw Newdow out on Standing. Doctrines like standing were intended to protect the institution against decisions that would expend excesive political capital.
Unless the court is prepared to declare the pledge constitutional they better take the standing door out. A ruling declaring the pledge unconstitutional would open the flood gates. Bush would be re-elected in a landslide, along with a raft of republican senators.........
To me Newdow has no standing (although the claim that he has no standing may have been raised too late) he was never married to the childs mother and he does not have custody. The custodial mother says she is raising the child as a beliver. Newdow has no factual injury, no case or controversy and no standing.