Wednesday, 15 October 2003
Standing questions in Newdow may prevent a ruling on the merits
Yesterday the U.S. Supreme Court granted certiorari to the Elk Grove Unified School District in its dispute with Michael Newdow. In lay terms, it agreed to hear the case. Newdow indirectly sparked a firestorm of national protest last summer, when the U.S. Court of Appeals for the 9th Circuit ruled that a 1954 act of Congress that inserted the phrase "under god" into the Pledge of Allegiance violated the first amendment to the constitution. While some of the debate has been intelligent and productive (1, 2), some of it has been invective and immature. As the parties and government-intervenors prepare to argue before the Supreme Court, suggestions have been raised that the Court should "dismiss" the case on "procedural grounds."
While the laymen journalists have gotten the terminology wrong, they may have the substance right.
Article III of the U.S. Constitution begins, "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish." Section 2 of Article III establishes the subject-matter jurisdiction of the federal courts — that is, the types of cases that the courts are empowered to hear. That section reads, in part:
The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects.
Together, these provisions give rise to the five-or-so (depending on how you count) sub-doctrines of justiciability: actual case or controversy, standing, ripeness, mootness, and political questions. These doctrines are complex in their detail, but their basic outlines are easy to understand. The long quote above from § 2 has been interpreted to require an "actual case or controversy" between two or more parties before a federal court can exercise the judicial power of the United States. The dispute must be a real one, not merely hypothetical, and the courts cannot issue "advisory opinions." The sub-doctrine of standing arises from this requirement.
To have standing to assert a claim, a plaintiff must show that he has incurred some injury, that the injury has been caused by the defendant, and that the court has the power to redress the injury if it rules in the plaintiff's favor. In this context, "injury" is defined broadly as prejudice to any right or interest that the plaintiff is legally entitled to assert. This covers everything from physical/bodily injuries to loss of money or property and harm to the plaintiff's reputation.
After the 9th Circuit ruled last summer, the school district and the federal government moved to disqualify Newdow as a plaintiff, arguing that he lacked standing to sue in this case. Their arguments revolved around Newdow's relationship with his daughter and her mother, Sandra Banning, whom Newdow never married. When Newdow filed the suit, Banning had sole legal custody of her daughter — meaning that Newdow arguably did not have a legal right to give input into her upbringing. Newdow has since obtained a revised custody order in a California state court that clarifies his rights with respect to his daughter. Under that order, Newdow has a clear, legally-cognizable interest in his daughter's upbringing. The standing doctrine, however, recognizes the plaintiff's status only at the time he filed the federal lawsuit. The Supreme Court has asked the parties to brief and argue the issues of whether Newdow had such an interest when he filed the present lawsuit three years ago and, if not, what should be done with this case.
The Court's critics argue that it may use the standing issue as an excuse to shirk its duty to rule on the merits of the case. They are probably right, since the Court has clearly gained a sense of its political status in the wake of Bush v. Gore (the 2000 Presidential election case), Lawrence v. Texas (the Texas sodomy case), and Gratz v. Bollinger and Grutter v. Bollinger (the University of Michigan affirmative action cases). The facts of the Newdow case permit only one outcome — legally — but the Court will probably reach the opposite result for nonlegal reasons. The present Supreme Court is more conservative than any in recent history, and it would be highly entertaining to see it try to squirm its way out of its own precedents to find the Pledge constitutional in its current form — especially after Justice Scalia recused himself from this case.
However, as an honest man, I could not profess respect for the First Amendment without showing an equal respect for the rest of the Constitution. Although the First Amendment codifies the most basic liberties of our society, it coexists with other provisions of the Constitution as equals. Those other provisions, while not as morally compelling as the First Amendment, are equally demanding of our respect. Serious questions exist as to Newdow's standing in this case. Those questions will require a detailed examination of family law in California, which is the final arbitor of Newdow's legal rights with respect to his daughter. If the Supreme Court decides this case on Article III (standing) grounds, I will be the first person to leap to its defense. If it reaches the merits of the First Amendment dispute by shortchanging its analysis of the federal courts' jurisdiction, I will be the first to pen an editorial against it. I do hold out hope, however, that the Court can resolve the Article III question in Newdow's favor and reach the First Amendment question legitimately.
The worst harm that can come out of this situation will be for the Court to rule that Newdow lacks standing and dismiss the suit for that reason, then for supporters of the pledge in its current form to hail that decision as a ruling on the pledge. So let us try to avoid such misdirection, shall we?