Newdow’s injury (according to the appeals court) is that the state is interfering with his rights as a parent. He didn’t bring a suit on behalf of his daughter. No one is saying that she’s suffering any injury.
Like Scalia, Minty seems to lack social skills. It’s one thing to make an argument; it’s quite another to disparage others.
Query for the SCOTUS watchers in the crowd…
Is it possible that Scalia, having a real good idea the 9th circuit decision would probably be appealed, deliberately made statements designed to force him to recuse himself?
I was pondering why he would make such inflammatory statements in public if he knew (or thought likely) the case would end up in front of SCOTUS. The answer to me, was that he really really really didn’t want to vote for overturning the 9th, and believing that if he didn’t participate there would be a 4-4 tie, decided to make remarks so far out there that he’d have no option BUT to recuse himself.
Maybe I’m being too Machiavellian, but it just seems a bit odd. How often have Justices recused themselves because of public statements on cases?
Regards,
-Bouncer-
The appeals court ruled that Newdow, as a parent, has a right to control the religious upbringing of his daughter. When it reached that ruling, it was unaware that Newdow didn’t even have custody of the girl. It didn’t consider the challenge to Newdow’s standing made by the girl’s mother. When the court ruled, the mother had sole legal custody. After that, the appeals court decided a matter of state law: that non-custodial parents have certain rights under state law. Will the Supreme Court accept that? On what basis? What rights does the Constitution give to non-custodial parents? Seems to me, it’s pretty silent on such an issue.
How would that violate his ethical principles?
Scalia is famous for going around and tooting his horn, for talking about how he’s right and anyone who disagrees with him is an idiot (he takes Minty’s juvenile approach to people who don’t share his thinking.)
Who can say that anyone who would disparage another Supreme Court justice before an audience is conscientious?
Scalia may be brilliant (as some say), but he lacks maturity.
On the narrow issue of state law determining federal standing? None at all, at least that I’m aware of. I base my conclusion on the existing case law–of which there is quite a bunch–where the federal courts invariably look to federal principles to determine standing. But even if you assume that California law is binding on the Article III “case or controversy” requirement, you still don’t get to Mr. Newdow being without standing.
Perhaps the best analogy here would be to property law. If you are familiar with the concept of life tenancies, you know that the title to such real property is split between the life tenant–who has possession and use of the property during her lifetime, and a remainderman, who takes title and possession after the death of the life tenant. Suppose the feds exercised eminent domain over such a piece of property to build a new military base, but refused to pay compensation to the remainderman. Would the federal courts determine that the remainderman does not have standing to sue for compensation under the Fourth Amendment?
Of course not. For while the remainderman obviously doesn’t have the same level of rights in the property as the life tenant, the remainderman does have an interest in the property. Same thing with Mr. Newdow, who does have certain rights and duties w/r/t his daughter (presumably including the typical weekend/summer custody), and who will even inherit custodty of his daughter in the event his wife dies.
I doubt it. While I wouldn’t be surprised to see one or two of the more liberal justices try to avoid the issue through standing, I’m completely certain that a solid majority of the Court will reverse on the basis of past cases that say such long-standing practices in public ceremonies are basically securlar in nature and therefore not prohibited by the First Amendment. I’d look for a 6-2 decision, maybe even unanimous. The conservatives certainly are not looking for an excuse to avoid ruling on the merits on this case, and practically speaking, such excuses are the most common reason for tossing a case on standing grounds.
I for one really hope they won’t keep putting “long standing practices” into their reasoning. That might make sense in terms of fully civil society endeavors in which we are considering government intervention. But I don’t see what relevance it should have to the actions of a government itself, which is what this case concerns itself with. The government shouldn’t be able claim that it can create or delimit rights simply by doing something in regards to them for a long time (let alone when that “long time” is only 50 years). The issue of secularity should be paramount.
I certainly wouldn’t agree with the nonsensical Ceremonial Deism trope, but at least it’s a very limited bit of nearly harmless nonsense, rather than a line of bogus reasoning with wide application.
They’re basically the same legal concepts, Apos.
And I too would be thrilled if they affirmed the 9th Circuit opinion. I’m just expressing severe doubt that they will do so.
Well, I don’t think quite precisely. One is that long practice makes a potentially unconstitutional act less so. The other is that deistic ceremony is 1st amendment proof in general. I suppose Ceremonial Desim does involve both concepts, but I think the latter has more ground to stand on, and if they do reject the 9th, I hope that they lean far more towards the latter reasoning.
Okay, fair enough. The ceremonial deism arguments I’ve seen have been in traditional contexts, but I can see how it could easily embrace new practices as well. FWIW, I don’t think ceremonial deism has seen much legal acceptance outside of the “tradition” cases, but who knows what the Court will come up with this time. Outcomes are often easy to predict in church-state cases before the Supreme Court, but rationales change constantly.
Irony meter overload in progress.
I’ve not read the decision, so I’m going on your summary on this point, but federal courts have to consider what the state law is on certain points all the time, if it’s one of the underlying issues that is relevant to the determination of the federal point of law before them. They do so by examining the state statutes and precedents from the state court systems.
If the state courts have clearly ruled on the issue, the federal courts are bound by the state court determination on the state law. If the state courts have not considered the issue, or have given an unambiguous answer, then the federal courts have to make their best effort to determine what the state law is, to the extent necessary to decide the question of federal law. The ruling on state law doesn’t flow from the federal Constitution, so it’s not a question of the federal Constitution determining the rights of a non-cutodial parent under state law; it’s the federal courts doing their best to understand the rights of a non-custodial parent under state law, if that point is necessary to the federal issue before them.
And, that determination of state law for the purposes of that particular federal case is not binding on the state courts; if the issue comes up in the state courts after the federal court decision, the state courts are free to say, “With respect, the feds got it wrong. Our law on this point is x, not y.”
What the federal courts cannot do is say: “State law isn’t clear on the issue of the rights of non-custodial parents. That issue is relevant to determining standing. Until the state courts determine the issue, we can’t decide this case.”
oops - that should be “or have given an ambiguous answer”
The question is not what rights Newdow has as a non-custodial parent, except very indirectly. The question is whether his rights under Federal law, including the U.S. Constitution, have been unduly trammelled with by a state-created entity, i.e., the school board which runs the public schools in which his daughter is being educated. If he can show that he is in some way the victim of an injury caused by them, he has standing to bring suit in Federal court.
Scalia’s personal attitudes toward other justices and people like myself who do not accept his textualism and cultural custom enshrined as public policy are a matter of personal ethics.
Each justice is the sole judge of whether he has an interest calling for recusal – this is a matter of judicial ethics. I’ve not spent a lot of time reviewing Scalia’s record, but I’ve formed the impression that he is quite scrupulous in this regard.
He’s a mouthy, polemic dickhead – but he’s an ethical mouthy, polemic dickhead. 
Well, at least in this instance and as far as we now know.
Well . . . let’s see . . . Ted Olson, Solicitor General for the United States says Newdow lacks standing. According to Olsen:
“First, and most fundamentally, Newdow has not suffered the invasion of any legally protected interest.”
“He [Newdow] has no legal right to sue as his child’s next friend, or otherwise seek to vindicate his child’s legal interests, as the court of appeals recognized.”
“Nor, contrary to the court of appeals’ opinion, does Newdow have any right ‘to direct the religious education of his daughter.’”
“Where, as here, the two parents disagree on an educational practice, the decision of the custodial parent controls and Newdow has no right to overturn it. If, as the noncustodial parent, Newdow believes the mother’s educational decisions are causing harm to the child, the proper remedy is for him to resort to family court and seek a modification of the custody agreement. He cannot use federal litigation to circumvent that state-law process or to modify a state-law custody judgment.”
Minty says I have no idea what I’m talking about. Fine. But he’s also saying the Solicitor General is flat-out wrong, that quite a number of hi-falutin legal scholars are wrong. That’s a might arrogant, don’t you agree?
Consider the tone of Minty’s remarks.
My bet is that the Supreme Court sends this back to the state to rule on Newdow’s standing. Why should the Supreme Court get caught up in this issue of state law before the state courts have considered it?
Is it ethical to suggest that anyone who disagrees with you is stupid, or ignorant, or not as smart as you are?
To me, whether it’s Justice Scalia or Minty Green doing the name calling, the proper adjective is juvenile, not ethical.
Irony meter now going into low earth orbit!!
And the Irony is . . . ?
But one of his rights is not to oversee the religious upbringing of his daughter, correct? If his ex-wife converted to Santaria and brought his daughter up accordingly, he’d have no right to intervene under California custody law, I think. I’m not saying you’re incorrect here, but your analogy isn’t working for me, because the particular rights he has are specified. Help me get there.
You might be right about the “secular purpose” argument. That would be disappointing, as it would requre an intentional ignorance of how “under God” got into the Pledge in the first place. But yeah, I guess it wouldn’t be particularly surprising.
Ironic that earlier caselaw gave students the opportunity to opt out of reciting the Pledge or even standing. Do you suspect the case might have gone differently if those cases had never existed?
reciting the Pledge or even standing
“Standing” there means standing up, of course. Not having permission to sue. Doh!