hezekiah jones

Heh. Judges appointed for life are not supposed to be swayed by political scuffles. Or so we have often been led to believe.

Stephen Maturin

This recent evidence business raises another question. As I read the court of appeals' opinion, the trial court dismissed the case by granting a 12(b)(6) motion. Presumably that means the lower court limited its inquiry to the averments in Newdow's complaint. I haven't been able to find any information at all about whether the parties conducted any actual discovery (depos, interrogs, admission requests, etc.), nor have I come across the complaint itself.

Generally, courts exercising appellate jurisdiction don't receive evidence or make findings of fact; they only decide whether the trial court screwed up. Let's assume there wasn't any real live evidence adduced in the trial court here. The question then becomes whether the court of appeals will, or even can, consider evidence extraneous to the record (the custody dispute, the fact that Newdow's daughter is a Christian, etc.) and make its own findings of fact. Alternatively, if the court of appeals can't make findings of fact, could/would it determine that the evidence warranted vacating its judgment and remanding to the trial court for an evidentiary hearing on the standing issue?

Trying to present brand new evidence on appeal in an Ohio appellate court is a good way to get yourself sanctioned. Maybe it's different in the federal system, especially with regard to jurisdictional issues like standing. Are there any federal appellate court practitioners out there who can shed some light on this?

I tend to agree with Toto here. The Ninth Circuit's use of Wallace and Santa Fe, cases in which no one put up a stink about standing, was creative and interesting. Even so, the plaintiffs in those cases were parents of school children who attended the offending schools. Seems to me that Newdow's standing to challenge the 1954 Act and his status as the girl's father are inextricably connected.

Does all this stuff about the girl being a Christian Pledge-reciter and living exclusively with her mother make a difference? If the right to control his kid's religious education is all that counts, then arguably not. Newdow has that right, regardless of where the kid lives, unless some domestic relations court has terminated it. On the other hand, if standing is at all dependent on actual exercise of his right, Newdow may be SOL.

Shadowy Man

Vonmeth:

It's like being only a little bit pregnant.

Jamie_L

So often I've heard: "'Under God' obviously doesn't establish religion." or "obviously doesn't violate the Constitution." But no one explains WHY it's so obvious. It's not obvious to me.

What's obvious to me is that when the word were added to the Pledge, Eisenhower said kids would "praise the almighty" every day. Doesn't sound like he thought it was de minimus.

Jamie