Toto

'Under God' Underdog?

beejay

I'm not qualified to decide if Newdow is over his head or not...

But the ACLU and others showed no interest in contesting "under God". Newdow had the determination and ability to win at the Federal Appeals Court level.

So if they say "Thanks, Mike, we'll take over now", I can understand why he might ignore them.

Jewel

I was under the impression that unconstitutional laws could be overturned by the Supreme Court.

Not that there's a chance in nonexistant hell that it would happen in this case....

Grumpy

That's true, Jewel, in that the Constitution is basically The Law which all other laws must obey. However, the 9th Circuit removed its earlier ruling against "Under God" on 1st Amendment grounds. I take it that means Newdow will not be arguing the constitutionality of the 1954 act before the Supremes.

To argue Scalia's point, it's up to legislators and not judges to make the laws. If society is ready to let go of "Under God," it should be up to the legislature to repeal it (he would say). It's up to Newdow to argue that the legislative branch already acted when it adopted the 1st and 14th Amendments. It worked in Brown v. Board of Education: rather than let legislators handle the specific controversy of school segregation, the Warren court decided the issue was settled in 1868, when the 14th Amendment was ratified.

Stephen Maturin

They sure can. Trouble is, Scalia said publicly that there's nothing unconstitutional going on here. Should he recuse himself? You betcha. Will he? Not a chance.

On a brighter note, Americans United for Separation of Church and State will file an amicus brief with SCOTUS today. The brief opposes certiorari and focuses rather heavily on jurisdictional issues. In particular, AU takes issue with the fact that the United States (Ted Olson & Co., Inc.) is carrying the ball on this appeal even though it won in both lower courts. The brief also addresses the standing and Establishment Clause issues.

You can download the brief in PDF by right-clicking here. Looks pretty good on first reading.

Jewel

Ok, I get the distinction.

Grumpy

Interesting amicus, yet it makes things look grim for Newdow.

AU basically wants to avoid a fight altogether. They appear to be trying to K.O. the opposing team's quarterback by arguing that the Feds have no standing to appeal, and that the Supremes couldn't hear such an appeal anyway.

The standing question has always bothered me. AU even suggests that the Supremes might vacate the 9th Circuit ruling, if only to send the case back for further exploration of the rights of non-custodial parents.

At least AU argues that the Supremes should deny cert because, frankly, there's nothing left to appeal. Newdow won fair & square, they say. But has that ever worked?

And what if it did? Kids would say the non-God pledge in the 9th Circuit, while it's business as usual everywhere else? And what happens if & when the 9th Circuit gets split up?

beejay

If the Supreme Court denies cert, then Newdow has won the fight in the 9th Circuit. (Although he wants cert since he wants more than just the "under God" pledge to be prohibited in schools...he wants to force the pledge to be changed.)

Then it's left the rest of us in the other circuits to decide if we're willing to make the same fight.

The consensus here seems to be the Supreme Court will find a way to allow "under God", so do we really want them to hear this case...?

StrictSeparationist

The point isn't what we want. The Court will hear the case, and it will reverse. This is simply fact. What really matters here is how many votes Newdow gets at the national level. It's very important to know how close we are to breaking through at the Supreme Court level. It's hard to say- you've got four Justices who are reasonably hard-line separationists, two who are sort of mushy, and three who want Christianity to become the official, tax-subsidized religion of America. That said, O'Connor and Kennedy (assuming both are still on the Court when the case is heard) will both vote to reverse, and some of the more liberal Justices may well go along with the majority. Unfortunately, even those who would like to do what is right in a constitutional sense will answer instead to the force of public opinion.