Justice Scalia and the Pledge of Allegiance case

On 14 October, papers across the country carried an AP story that made these two claims:

  1. the Supreme Court announced that Justice Scalia recused himself from the Pledge of Allegiance case.

  2. the Supreme Court announced it will decide whether the regular morning classroom salute is Constitutional.

Did Justice Scalia recuse himself from the case? Who knows?

Will the Supreme Court decide whether the Pledge is Constitutional? Probably not.

Read all about it:


What do you think? Does the AP try to make things seem more than they really are?

It’s not unusual (heh) for the Court to deal with a case involving a major issue and not actually resolve that issue. So I don’t think it was wrong of the AP to include that. It’s certainly why people are interested in the case.

“Details of the case may have been misreported” and “the AP tried to make things seem more than they really are” are not the same.

Let’s see if I can line up the known facts:

  1. Justice Scalia publicly criticized the 9th Circuit’s decision, and flatly stated that they got it wrong, thereby at least arguably violating his obligation not to give the appearance of partiality in a particular case that was almost certain to appear in his court in one form or another.

  2. After the petition for certiorari was filed with the Supreme Court, the respondent filed a motion challenging Justcie Justice Scalia’s participation in the case.

  3. Justice Scalia has not participated in any decision related to the petition for certiorari or the related motions.

Is there any reasonable explanation for item #3 other than that Scalia recused himself?
As for the writer’s claim that the federal appeals court improperly determined a matter of state law when it determined that the noncustodial parent had standing to pursue his federal claim, that’s basically nonsensical. The question of standing in a federal court, and in a case involving a federal constitutional claim, is determined under federal law. The court can consider the party’s rights and obligations under state law in support or derogation of federal standing, but it’s still ultimately an issue of federal law.

To illustrate the absurdity of the writer’s position, assume that California stripped the father of all parental rights without affording him the due process of law required under the federal constitution. Following the writer’s logic, the father could not challenge that termination in the U.S. Supreme Court because California law has already determined that the guy has no rights or interest in his child. This, of course, is a nonsensical outcome.

Moreover, it ought to be pretty obvious that a noncustodial parent retains certain rights and interests in his child’s upbringing. Though he certainly takes a back seat to the custodial parent in most respects, he still certainly has some rights and interests in his daughter’s upbringing, even under California law.

And of course, the writer’s conclusion that Scalia has recused himself but will de-recuse if the Court reaches the merits of the PoA, is utterly ludicrous. Scalia will not even be in the Court’s conference room when the other justices are discussing the case. “Recused” means he doesn’t go anywhere near it. Theoretically, he won’t even know what the Court has decided until they issue their judgment and opinions next spring.

Well, Scalia didn’t give an official reason–he doesn’t have to. But it turns out the Dad in the case wanted him to recuse himself anyway. When he did, Dad said “I think that was an amazingly courageous and upstanding thing for him to have done. He was right to do it. I didn’t expect that he would.”

So, everybody’s happy except those who don’t want to see a 4-4 split, which includes me. I want the silly thing settled.

A 4-4 split would mean the California court’s decision stands, meaning no more pledge. Not a resounding verdict, and perhaps not helpful for precedent, but I’d be satisfied with it since it’d still be the end of the thing.

Um, are we supposed to use the board to start threads to advertise our website of essays we want people to read? And, if we are going to do so, shouldn’t we say right up front that is what we are doing?

For those who may have failed to make the connection, LyricalReckoner is the author of the essay linked in the OP. I’m not sure who the heck this “Mister Thorne” really is; but I smell a front for some group. :rolleyes:

Think about it. There is no federal law that determines the rights of non-custodial parents, is there? It’s a matter of state law. For the Supreme Court (which has never ruled on the standing issue) to agree that Newdow’s got standing, it settles California law, even before the California Supreme Court has considered it.

The higher courts are not hip to deciding questions that have not been considered by the lower courts. The 9th circuit court of appeals has previously said that non-custodial parents have the right to control the religious upbringing of their children. Fine! But in this case, the custodial parent – the person who is responsible for the child’s education and welfare – disagrees with the non-custodial parent.

The standing issue is not a trivial matter. That the Supreme Court said it would consider standing is notable. It says that the Supreme Court is just accepting the appeals court’s ruling on standing.

The last line should read “It says that the Supreme Court is NOT just accepting the appeals court’s ruling on standing.”

For some reason, I can’t edit the previous post.

Only Moderators can edit posts.

Thanks, already have. And I’m pretty positive that I’ve thought about the concept of standing far more often and deeplly than you probably have.

But that is not the issue for federal standing. The issue for federal standing is whether the party invoking the federal court’s jurisdiction has a “personal interest” in the litigation, and that the injury alleged is capable of being redressed by the court. This is not a matter of state law, and I defy you to find any federal case stating that standing is determiend by the claimaint’s “personal interest” under state law.

This is ridiculous. The Court would determine only that Mr. Newdow has standing to pursue his claim in the federal courts. It would not have one tiny effect on Mr. Newdow’s rights and obligations under California law.

Not in teh slightest. The Court is required to satisfy itself every claimaint’s standing–it’s an inherent part of the Constitutional “case or controversy” requirement. When the parties themselves raise the standing issue, the Court will routinely consider the issue explicitly.

By the way, it would at least be considered good manners to acknowledge your authorship of the essay on which you are soliciting comment. We’ve seen more than one guy show up here trying to stir up interest in his website. It’s not really a proper purpose for posting here.

How could you know?

It would effect far more than California’s family law: it would determine the rights of non-custodial parents for all states.

I always post such things at that site. Much more convenient that way.

Trying to stir up interest? Trying to stir up a debate!

“Not a proper purpose. That’s ridiculous. That’s basically nonsensical. I know more about this than you do.”

You’re not in a very good position to talk about good manners, now are you?

I am an attorney, and I deal with actual standing issues in actual cases in front of actual state and federal courts on a fairly regular basis. You, on the other hand, are a technical writer with no legal training or experience, and you demonstrate significant misunderstandings of the concept of standing. So yeah, I’m pretty darn sure that that I’ve thought about the concept of standing far more often and deeply than you probably have, and that your claim that I should “think about it” is pretty silly as applied to me.

As I stated above, it would determine only that Mr. Newdow has standing to pursue his claim in the federal courts. It would not determine anything at all about the rights of non-custodial parents generally–it would just say they can, under sufficiently similar circumstances, get into federal court to press constitutional claims involving their children. And of course, that must be a matter of law–the states themselves cannot determine who gets access to the federal courts and who does not.

For a guy who’s “[t]rying to stir up debate!” you sure don’t seem to like it when somebody points out that your assertions are wildly incorrect. If you post something ridiculous, I’m gonna tell you it’s ridiculous.

Now, could you be bothered “to find any federal case stating that standing is determiend by the claimaint’s “personal interest” under state law”? Thanks ever so much.

You might want to take a look at the amicus briefs filed in the case.

You also might want to take a class in good manners (or get some anti-arrogance medicine). You could sure use it.

Or maybe you could argue and support your bloody case instead of whining so damn much.

I think I’ve thought about standing for about seven hours over the last four years, mostly relative to law debates here in which the issue has arisen and in reading about Constitutional law (a hobby-type interest of mine).

Since minty has to be prepared to assert valid standing in every case he briefs for a possible court appearance, I suspect he’s right in his claim.

In our Federal system, one’s access to the courts is determined by whether one has standing – just because I think DOMA is a piece of malarkey does not give me standing to challenge it in court; I have to show that it directly causes me an injury (which it does not) to file such a suit.

The question of whether Newdow had standing to sue in California state courts under California law relative to the rights of non-custodial parents is only tangentially germane to his rights under the United States Constitution and federal law. If he can demonstrate to the satisfaction of a court that he has in fact been injured or has the potential to be injured by the actions of a state law or regulation he claims to be contrary to Federal law, then he has shown standing as regards the Federal system.

And, as has been amply shown in numerous arguments (e.g., the gay marriage issue), what a given state decides to recognize or not recognize is not binding on the Federal courts. There was a comment once in regards to a controverted divorce decree that the couple in question were validly married in one state (CT, IIRC), validly divorced in another (NV), and one party was married (to the other) but the other was not married in a third state (NY, again IIRC). To be sure, the courts will consider what rights Newdow has as regards his child’s upbringing under the California custody decree – but they are not bound by it.

I think this is a significant case, and sincerely hope it is not decided merely on the standing issue. But that is one hurdle that must be vaulted.

As for Scalia’s recusal, while I disagree vehemently with much of his Constitutional-law philosophy, the man is in fact generally a conscientious judge who usually acts according to legal principles. That he would recuse himself from a case on which he had incautiously commented publicly does not surprise me, and for him to rule on it would violate his own ethical principles.

(As an aside, I never knew that Kenneth Starr “pursued oral sex in the Oval Office” – my impression was that it was some other guy, a relative by marriage of a Senator, who did that – and that, according to the public pronouncements of those running the investigation and impeachment, it was perjury, not fellatio, which was the crime in question. Nice to see the truth will out! :mad: )

And, before we get sidetracked, let’s note that the Ninth Circuit explicitly declined to decide the constitutionality of the Pledge of Allegiance itself. The issue at question is the constitutionality of a regulation of the school district which Newdow’s daughter attended which requires daily recital of the Pledge. There is, in my mind, a significant difference between public acceptance of a voluntary statement of belief and a governmental entity mandating or coercing its use. I have a very high opinion of the Nicene Creed – but I’d be dead opposed to requiring its use by anyone who cares not to recite it, for whatever reason.

I doubt that it would end the legal debate, let alone political fall-out. My understanding is that an evenly split decision of the Supreme Court means that the judgment below is affirmed, but does not establish any Supreme Court precedent. So the law would be settled for the 9th Circuit, but the issue could be re-litigated in other circuits, possibly with a different result.

I’m not sure any verdict will do that. We still argue about Roe v. Wade, after all.

That wouldn’t surprise me. People can try to challenge the case anyway, and they probably will. It’s up to the court or future editions of the court to figure out what to do with it. They could accept a similar case deliberately to overrule this case if they wanted- probably depends on the makeup of the court.

But that’s exactly the problem here as regards standing. Newdow suffers no injury here – it’s his daughter who arguably does. Where standing comes into play is whether he may legally bring the suit on his daughter’s behalf. You or I may not, a custodial parent may, and Mr. Newdow may or may not. And that in turn may or may not depend on California’s laws as regards the rights of non-custodial parents.

Minty has shown a good grasp of the law on this board – more importantly, he’s shown a willingness to say “I don’t know” when something is outside his area of expertise. So I suspect that he’s right on the facts. But. I don’t know what precedent exists on this, but I’ll still bet a buck that SCOTUS weasles out of this one by using standing. And another buck they won’t need Scalia around to do it – he’ll stay out no matter what happens.

Not exactly. The pledge could stay, just without the “under God” phrase, which was only inserted into the pledge in 1954 in response to a campaign by the Knights of Columbus.

Or the Pledge and “under God” could both stay, but school teachers could no longer lead its recitation. I assure you, Congress will jump through 12 different hoops before they pass a law taking “under God” out of the Pledge. They’ll try to amend the Constitution, they’ll threaten to impeach Justices, they’ll pass laws withdrawing Pledge cases from SCOTUS jurisdiction. Yea, we will see a surfeit of oratory and bloviation, providing hours of C-SPAN entertainment far into the night. But we will not see Congress take “under God” out of the Pledge.