# SCOTUS Pledge ruling: did the justices dodge the question? **URL:** \ **Category:** Factual Questions\ **Created:** [June 14, 2004, 3:41pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294 "2004-06-14T15:41:29Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![drewbert](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drewbert/32/15890_2.png) [@drewbert](https://boards.straightdope.com/u/drewbert)\ **Post date:** [June 14, 2004, 3:41pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/1 "2004-06-14T15:41:29Z")
from [CNN.com](http://www.cnn.com/2004/LAW/06/14/scotus.pledge.case.ap/index.html): > [@](#): > > WASHINGTON (AP) – The Supreme Court at least temporarily preserved the phrase “one nation, under God,” in the Pledge of Allegiance, ruling Monday that a California atheist could not challenge the patriotic oath **while sidestepping the broader question of separation of church and state.** > > The decision leaves untouched the practice in which millions of schoolchildren around the country begin the day by reciting the pledge. > > **The court said the atheist could not sue to ban the pledge from his daughter’s school and others because he did not have legal authority to speak for her.** Emphasis mine. I’m not posting to start a PoA debate (I’m sure one will be along shortly in GD.) My question - is the Supreme Court bound to take these sorts of legal technicalities (i.e., Newdow’s legal authority to sue) into account? Could they have made a ruling on the actual issue if they had wanted to, regardless of the details? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 14, 2004, 4:16pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/2 "2004-06-14T16:16:24Z")
One of the fundamental tenets of constitutional law is that of standing. Standing is part of the “case or controversy” requirement of Article III; in addition, there are prudential limitations on standing where the court could constituionally hear a case, but will not without the authorization of Congress. If I wish to bring a suit in court I have to show that I am actually injured (or that injury is imminent) in a concrete and particularized way, and that the court can redress that injury; otherwise, I have no standing to bring suit. For example, if I wished to challenge the inclusion of “Under God” in the Pledge of Allegience when recited by schoolchildren, I would be unable to do so because I don’t have any kids and cannot assert the constitutional rights of others absent some special relationship. Standing must exist in every case, and issues of standing must be resolved if the merits of the case are to be reached. If I couldn’t show I am actually injured, I have no standing under the Constitution and am constituionally barred from bringing suit. Not even a grant of standing from Congress could get me into federal court. So no, SCOTUS didn’t just completely make something up to avoid the issue; there’s plenty of legal precedent dealing with constitutional and prudential limitations on standing. Could they have made the ruling if they wanted to regardless of standing? They’re not supposed to, no. Standing is an absolute requirement to bring suit in federal court. A cynic might say that they find tend to find standing more when they want to hear the case and don’t find it when they’d rather not, but’s more Great Debates territory. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 14, 2004, 5:12pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/3 "2004-06-14T17:12:35Z")
You need to read the entire CNN article. The majority, five justices, did turn down the suit on the basis of lack of standing. But three justices concurred on the basis of the issue itself: > [@](#): > > Chief Justice William H. Rehnquist agreed with the outcome of the case, but still wrote separately to say that the Pledge as recited by schoolchildren does not violate the Constitution. Justices Sandra Day O’Connor and Clarence Thomas agreed with him. So the Court could have ruled either way. It came down to individuals, as usual. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 14, 2004, 5:33pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/4 "2004-06-14T17:33:02Z")
No, all eight justices sitting were unanimous that Newdow had no standing. Rehnquist wrote a concurring opinion (in which O’ Connor and Thomas joined) stating that they would have reversed the lower court on the merits, but they joined in the majority opinion of no standing and their remarks were dicta. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 14, 2004, 6:17pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/5 "2004-06-14T18:17:14Z")
> [@](#): > > Rehnquist wrote a concurring opinion (in which O’ Connor and Thomas joined) They actually each wrote separate dissenting opinions. All four opinions are available [here](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-1624). Trying to second-guess the Court is usually a fruitless exercise, but if I were a betting man I’d wager that SCOTUS absent the standing issue was either deadlocked 4-4 or would have voted 5-3 in favor of upholding the 9th Circuit and, not wanting to deal with the fallout from striking out the magic words, hid behind the standing issue. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 14, 2004, 6:17pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/6 "2004-06-14T18:17:32Z")
Thanks for the correction. That’s obviously different than what was reported. Still, what would have happened if two more justices had agreed to overturn the lower court on the merits? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [June 14, 2004, 6:29pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/7 "2004-06-14T18:29:45Z")
In regards to standing: the girl’s mother had filed no brief in the case until it went to SCOTUS, at which time she filed asserting that Mr. Newdow was not the custodial parent. This was information that was not presented to the California or 9th Circuit courts. It is probably true that the Supremes “dodged” the issue, but it appears to have been a legitimate (if convenient) ruling ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 14, 2004, 6:38pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/8 "2004-06-14T18:38:21Z")
Wow, **Otto** , you’re right, as was **Exapno Mapcase’s** original assertion. That’s totally different from what was reported. Probably what threw the reporter was the concurrences don’t say “concurring in part and dissenting in part.” Still a pretty major foul up. I was going to say that if two more justices had joined to overturn on the merits, it would still have been dicta because the opinion as to standing was unanimous, but apparently it wasn’t after all. So if two more justices had joined on the merits it would have been the majority opinion. ---
**Author:** ![drewbert](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drewbert/32/15890_2.png) [@drewbert](https://boards.straightdope.com/u/drewbert)\ **Post date:** [June 14, 2004, 10:06pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/9 "2004-06-14T22:06:58Z")
Thanks everyone for all the replies! Although I tend to lean towards Newdow’s side on this, the justices seem (to me) to make some convincing arguments. But then again, I started to get crosseyed halfway through the opinions. I don’t see where anyone wrote a dissenting opinion based on the merits of the case. 😕 ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 14, 2004, 11:19pm UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/10 "2004-06-14T23:19:33Z")
It’s weird - but very nice - to see a thread in which everybody is bending over backwards to acknowledge the people contradicting them. 🙂 Stevens majority opinion, BTW, contains this telling line: > [@](#): > > When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. Both the evening news and various commentaries on the web are interpreting this fairly explicitly as ducking the issue, as was indeed widely anticipated. The implication to me continues to be that two more merit justices would have changed the ruling. I’m still curious whether this would have been the case. And I also don’t understand the use of the word dissent. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [June 15, 2004, 1:57am UTC](https://boards.straightdope.com/t/scotus-pledge-ruling-did-the-justices-dodge-the-question/250294/11 "2004-06-15T01:57:56Z")
> [@drewbert](#): > > Thanks everyone for all the replies! Although I tend to lean towards Newdow’s side on this, the justices seem (to me) to make some convincing arguments. > > But then again, I started to get crosseyed halfway through the opinions. I don’t see where anyone wrote a dissenting opinion based on the merits of the case. 😕 From Rehnquist’s opinion: > [@](#): > > The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District (School District) policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” does not violate the Establishment Clause of the First Amendment. Section I of Rehnquist’s opinion is his dissent from the majority on the standing question. Section II is his discussion on what he perceives to be the merits and his agreement with the result of reversing the 9th Circuit. O’Connor joined Rehnquist in his agreement with the majority that the 9th Circuit should be reversed but wrote separately because her analysis of the case is different. Thomas woke from his slumber long enough to join with Rehquist’s agreement to reverse the 9th Circuit but, again, on different grounds than either Rehnquist or O’Connor. They are “concurring” opinions in that they concur with the _decision_ of the majority but they are “dissenting” opinions in that the three of them disagree with how the majority reached its conclusion (standing instead of merits). Near as I can tell this ruling has absolutely no value as precedent. If a custodial parent filed suit in the 9th Circuit tomorrow objecting to the Pledge the whole game would start all over again.