Actually, I suspect (and fear) that Lightnin’ is right. No, it wouldn’t make sense for the religious right to object to it, since that was a concession to religious folks in the first place, but since when has lack of sense ever stopped them before?
Because you think mere taxpayer status is too attenuated to support the prosecution of an actual case or controversy (standing’s mandatory Constitutional progenitor, as you know but recited for the benefit of our lay readers)? Or because you don’t think the Secretary’s funding of parochial schools offended the Establishment Clause?
What if it weren’t schools but actual houses of worship? Say the President or Congress decided to gives funds to, say, the ECUSA to further its Christian mission? Who would have standing to sue against such an appropriation, and under what theory? And why would that theory not afford standing to the plaintiff in Flast (taxpayer suing Secretary of Health, Education, and Welfare for funding parochial schools) or to the plaintiff in Hein (taxpayer suing White House Office of Faith-Based and Community Initiatives as an unlawful establishment of religion).
We just need to set up an impact litigation shop that focuses on standing itself. We’ll take clients regardless of what their case is about, but we want them to have just questionable enough standing to get the issue raised, but solid enough standing (and a good chance at the merits) so that we’ll get good standing precedent. We’ll call it the Courthouse Door project or something. The grants write themselves!
The former. A taxpayer who is simply upset with a particular government spending decision does not (or, more accurately, should not) gain standing merely based on his ire. The entire concept of standing, the whole basis of Article III’s case-or-controversy requirement, is that a plaintiff must be able to show a specific, concrete, quantifiable, actual injury, that can be reasonably laid at the feet of a defendant, and which will be resolved or redressed by a favorable plaintiff’s verdict.
Someone must be identified that has more of a “stake in the outcome,” as Justice Harlan’s dissent said in Flast. A school board that can identify funds denied to it in favor of the parochial schools, perhaps, would be a better plaintiff than simply a “taxpayer;” a grant seeker unable to get a secular grant from the Faith-based office a more appropriate plaintiff in the latter case.
In related news today, it seems that vandals have stolen the Mojave Memorial Cross just a few days after the Supreme Court decision allowing it to remain where it was.
I mention this here because, just as a general sense is developing that Newdow is no longer helping his cause, most people would agree that this is the case for these vandals - assuming that this vandalism was done in the misguided service of a cause. Personally, I don’t think this was a scrap-metal theft - those pipes were filled with concrete.
Heh. You know, that isn’t an entirely crazy idea. 
It probably wouldn’t make sense for something like this to take on many cases all by itself, but a nonprofit that did nothing but focus on, say, standing and civil procedure issues could carve out a real niche for itself working or even second-chairing with progressive impact litigation shops. Especially if it partnered with smaller outfits, ones likelier to get distracted by the sexy substantive arguments and give the procedural/standing stuff short shrift.
Take on a good intern staff of 3Ls interested in public policy law to keep your costs down, and find a good reputation-building case. Then … uhh… (non) profit, profit, profit!
Just out of curiousity, based on this model, why do you care about the actual merits of their case? You can get the standing precedent even if the merits fail miserably, right?
Yes, but the “Courthouse Door Project” wouldn’t have unlimited time or resources, so it might as well focus on good causes with a chance of winning on the merits. There’s also the danger that a claim that’s particularly shaky on the merits might so annoy the court that it produces a very weak favorable decision on standing, that won’t be very useful in future, in order to tear the case apart on the merits. It happens.
And of course, we do have an ethical and legal duty to care at least a little bit about the merits of the case. Rule 11(b) (and its state analogues) may not be that dangerous, but it does have teeth to it.
3.) Hi, Opal! Can we crash on your couch for a few months?
Eonwe said:
Not following this except what’s in this thread, but Newdow’s claim wasn’t that Obama’s use of “so help me God” caused harm, but that the judge who read the oath to Obama also said “so help me God”, directing Obama to use that phrasing, and that was what caused harm. The harm being the imprimature of government official sanction for religious belief and against non-belief.
It’s a pretty thin window.
Diogenes the Cynic said:
That didn’t stop Chief Justice Roberts from reciting “so help me God” when reading the oath for Obama. That is what Newdow was trying to address.
The Constitution doesn’t have it there, so Roberts shouldn’t have said it, even if Obama had inserted it himself.
Because one Chief Justice unlawfully inserted it, Newdow was trying to make a binding SC ruling that they can’t do that in the future.
I agree, Newdow is not helping.
Chronos said:
Read more closely: the actual complaint was not against Obama or the Constitution - the complaint was against Chief Justice Roberts.
In theory, sure. But Judges ain’t robots, and a case with strong merits and questionable standing is more likely to survive the standing review.
That’s so 2007 Bricker. In this legal economy, we’ll get a staff of deferred law firm associates.