Future Supreme Court Rulings

I’m sorry, Adam, but I think I’m going to have to disagree with what I’m assuming from your comments is your eye-rolling reaction to the Supreme Court ruling. The simple fact here is that the Supreme Court does not have jurisdiction over this case, and neither did the court that originally heard it. To have jurisdiction, you need (among other things) standing, which requires (among other things) that the government has done something TO YOU. This is to prevent people from suing to try issues in the abstract when they have not been affected and are simply pressing an ideological point.

Which, by the way, is exactly what’s going on here. Newdow, from all accounts, is apparently manipulating his child (over whom he does not have custody) to bring up his political views in court. The mother evidently disagrees strongly with Newdow’s claims that the child has been harmed, and what the child herself thinks is anyone’s guess. The fact is that Newdow has no standing at all unless he has legal custody of this child and she has been actually negatively affected by the phrasing of the Pledge (might-have-beens don’t count). And in that case he is not really filing suit because he is her parent, but because he is authorized to sue on her behalf since she cannot file a case herself, being a minor.

The requirement of standing is part of the constitutional “case or contraversy” requirement. The court may not try a case which it does not have jurisdiction over…to do otherwise is to undermine the legal principles that form the basis for our whole legal system. What good is a decision from a court that undermines its own operating principles in order to take cases it isn’t allowed to take?

The media distorts the reality of the situation and encourages the ignorance of the public by scornfully referring to this as a “technicality,” as if the court has copped out by invoking some piddly little rule. It’s a typical media tactic to discredit a court’s jurisdictional or procedural decision. (Evidence being dropped because it was obtained in violation of the constitution is also one of those pesky technicalities, and I’m presuming that you’d agree that unconstitutional searches shouldn’t be ignored by courts.) It’s not a freaking technicality, it’s the constitution.

You are also encouraging this foolish view of the court’s decision, which runs contrary to the very roots of constitutional law. I don’t expect the mass media to know what they’re talking about- but you ought to know better.

An actual supreme court ruling, (I’d have to look up the name) involved my brother who plead the case. It consisted of (to vastly oversimplify) whether a state should have 180 days to reply to an extradition case from the day it was sent or the day it was received. A rather minor point. Actually a minute point. But that’s what the court does.

So ironically, my brother, the appellate prosecutor for the state of Michigan, who is as flaming a bleeding heart as I am, argued the longer period, despite his own inclination. Given the current makeup of the court, who believe in prosecutors rights, he won.

(jerry, this is my autistic brother Jerry)

Lindsey:

though you may be right in legal terms concerning the supreme court ruling on the “under god” newdow case, i would still like to say that “under god” should be stricken from the pledge because it is in essence a pledge to a religious god in order to pledge to the united states of american. in that sense, i think the issue should be brought up again, but i don’t know enough about the supreme court (i probably should’ve paid more attention in high school civics) to know what the “proper” case would be.

and as for people who bring up that it doesn’t harm a child, i’m sure it doesn’t. but on principle and on historical grounds, i think that either children are taught the whole history of the pledge by the end of middle school (including all the nasty bits from the mccarthy era), or that “under god” be removed.

Adam -

Fair enough.

I love your blog and I often agree with your points…it’s only because I consider you an intelligent and humorous guy that I got so up in arms. So it’s a sign of respect, sort of.

Tess -

I happen to agree that the words “under God” should be taken out of the pledge. Hell, they shouldn’t have been put in in the first place. But sadly, it isn’t possible to do that here because of procedural screw-ups. Unfortunate, but that’s the way it goes sometimes…my argument wasn’t with people who wish Newdow would have won, it’s with people who think that the constitutional requirement of jurisdiction shouldn’t stand in the way of him winning. Every very time I read a headline about a court case with the word “technicality” it makes me twitch.

Be well.

Of course as soon as the pledge also includes Allah, Buddha, Zarathustra, Vishnu, Madeline Murray O’Hare, Allen Greenspan, etc. I won’t object.

But as long as we are on the pledge, how does parroting an oath that children can neither comprehend nor fulfill help them to be better citizens, or better students? Does it prevent another Columbine?

I never had to pledge allegiance until I was a substitute teacher and somehow I’ve managed to be an expectable American.

There have been several other “interesting” decisions lately. For example, the Court found in favor of an individual who was in prison for a crime that he didn’t commit but didn’t order him released yet because they wanted the case to go back to the lower court for them to release him. In another case, they made a veteran who won a case against the VA pay his own legal fees, even though the law specifically allows the lawyer to get the fees from the government instead. The reason? The lawyer initially failed to specify that the government’s claim was “not substantially justified” and the government waited to point out the error until the 30-day limit on claims had expired.

I understand the issues with jurisdiction and all… but I would have thought that the court has the right to notice when the other branches of the violate the constitution? I wasn’t a terribly studious youth, but I do seem to remember that a big part of their job is to act as watchdogs on congress and the pres?

And lest there is someone who hasn’t figured this out yet… To many children, their teacher is the only positive representative of the government that they ever come in contact with. They are (hopefully) taught to respect adults, authority, and their teacher in particular. So when the government, in the person of their teacher, tells them that our country is subjugated to this God guy, the tendency is to believe it.

This is all fine and dandy if they are taught the same thing at home, but what if they aren’t? What if their parents are athiests, buddhists, hindus, or totally into greek mythology? Who do they believe? Do they obey/follow their parents, thus defying their country? Or do they join show their loyalty to America by turning against their parents?

If they side with their family, do they stand firmly on their convictions or do they mouth the words, thus learning to lie?

And consider this: For the children who do believe in the same God they pledge to, does that not teach them that this country agrees with them, not with those who believe differently? Does this not open the door to hate crimes and discrimination?

I will admit that in most cases, this all probably goes completely unnoticed by school children — they’re more interested in figuring out who Richard Stans is. Still, are we really interested in compromising our values in this way? Even if it’s only a few kids who are really hurt by it all? Heck, they’re only weirdo atheists anyway!

Lindsay, since you seem the best-informed, how much custody of a child does a parent have to have in order to have standing to take legal action on behalf of the child? To me it seems basic that a father who *does* have a clear investment in the kid, even if he only got to spend one weekend a month with her, has some right to take legal action to protect her interests. In the same way that he has the right to call up the parents of the local bully and ask them to tell their kid to back off. That is — just because he’s divorced or separated from the mother hardly means he should be stripped of his right to act as the kid’s parent.

A moral/commonsense argument, not a legal one, of course. But it’s distressing how often the law and common sense seem to part ways….

In all 6 schools that I have subbed in, grade, middle and high school, every student starts the day with the pledge. That would be south central PA, it may be different elsewhere.

hmm, this is bringing up my own memories of thinking i was christian during the early part of my childhood. i didn’t realize i wasn’t until i was about 8 or 9 when my dad decided to become buddhist and my childhood buddies decided to try to convert me.

i don’t think most kids give it a second thought when they pledge “under god” but it really does emphasize a belief that we are a christian nation rather than a pluralistic one. and it doesn’t help that a lot of what i learned in elementary school was about how the puritans came to the the continent looking for religious freedom.

A couple of these posts (zoot and raya) suggest that the father’s standing in this case should be based on how much time he spends with his child. However, custody is a legal concept, not a matter of time spent or even personal interest in the child’s welfare. The state courts award custody so that there is a clear decision-maker for the child, and in this case they ruled that the mother makes these kinds of decisions.

And no, Uncle Roger, the court can’t just look around at the other branches and decide that they’ve made a mistake. Someone still has to bring a case. As for the “technicality” issue, Lindsay is completely right. The court is SUPPOSED to dismiss cases that aren’t technically proper. We’d be screaming bloody murder if the court (especially in its current configuration) just looked around for topics of interest and ignored technicalities.
Having said that, I hate the “under God” crap.

Raya-

I’m a law student but I don’t consider myself an authority on all things legal. While I was aware of the constitutional/jurisdiction issue because it’s something I’ve studied, I honestly know nothing about the legal ins and outs of family law…so I don’t know what the law says in regards to custody and when a parent has custody such that he has the right to act as a child’s legal representative.

I’d say Ann expressed the point most clearly. I don’t know exactly how custody law works but I’d presume that the Supreme Court and its clerks do.

Lindsay:

I’d say Ann expressed the point most clearly. I don’t know exactly how custody law works but I’d presume that the Supreme Court and its clerks do

Which brings up the question: Why did they even bother letting the case be heard? I’m under the impression that if there is a glaringly obvious technicality that the Supremes can just say so and overturn the lower courts ruling without letting the case be made in front of the Court.

I know that no one in DC is really above politics - and the 2000 election issue notwithstanding - I just assume and hope that the Justices of the Supreme Court would be as above everything as possible and render decisions based on the laws. The fact that this case was allowed to be argued, and then dismissed (while 3 justices said how they would have voted) just reeks of judicial political grandstanding.

I expect this kind of stuff from the executive and legislative branches, no matter what party holds them, but I always hope that the judicial could be a little less political and a little more “for the good of the people”.

Okay, while that would change the “why did they even take it” question, it still leaves the unfortunate “how I would’ve voted” commentary that accompanied the decision. Oh well.

Thanks for the info though.

In one class that I subbed for, there was only a single student and myself. The student didn’t want to say the pledge, nor did I. I hope that no one was watching.

I would expect that you could substitute almost anything and the kids would parrot it without thinking. “I pledge to study hard, clean my room, be nice to my little sister, never give the substitute teacher a hard time, amen”.

Or ” I pledge allegiance to the flag of the United states of Dick Chaney, and to the Republicans of which he heads. One party, trying to make everything subject to our idea of God, with liberty and money for the chosen few, amen”.

Honestly, the kids don’t care. It’s just more crap that they have to put up with.

However it does make right wing politicians feel better.

Not only do I have a problem with the “Under God” line, but I also take issue with the pledge itself. It’s always seemed to me that requiring anyone to pledge allegiance to one’s country and flag smacks of jingoism and perhaps even fascism, and requiring children to do so is tantamount to indoctrination. For that reason, I greatly dislike the pledge, since it seems to represent exactly the opposite of my concept of American freedom. Of course, I’m sure there was a time I parroted the entire thing along with the rest of my elementary school classmates. Thankfully, my parents eventually explained to me just what I was saying and that I had the right not to say it. After that, my only response to the pledge was to stand with the rest of the class (to avoid getting in trouble with the teacher) and mentally review the hand-jive scene from Hairspray.

On a semi-related note, a law was recently passed in Florida (my home state) requiring all public school classrooms (including in universities and community colleges) to display the American flag. And taxpayers and college students get to pay for it! Upon hearing about the yet-unpassed-bill, my eyes rolled so far back into my head I thought I might sever an optic nerve.