Elk Grove v. Newdow

Another decision has been handed down today that demonstrates how spotty coverage by the media can so obfuscate the underlying principles of a case beyond any meaningful legal analysis. However, if Tennessee v. Lane was an example of a politically trivial case being blown out of proportion by scandal-mongering journalists, Elk Grove Unified School District v. Newdow is the inverse. If you will recall, Elk Grove is the case decided a few years ago involving the use of the phrase "under God" in the pledge of allegiance. The New York Times covered Elk Grove somewhat dejectedly; the only reason they mentioned it at all, I think, is that they had so zealously touted it as a landmark case when it was decided by the Ninth Circuit two years ago. As it came down, the article complains that the case was "dismissed on a technicality" (as though the Court had somehow chickened out in standing up for First Amendment principles), because a majority of the Court declined to reach the merits of the case, deciding instead that the plaintiff never had standing to bring suit.
Firstly, the fact that the case was decided the way it was reflects, again, very poorly on the news coverage of the case and subsequent grant of certiorari by the Supreme Court. The fact that there were actually two questions on which certiorari was granted--namely, the standing question and the First Amendment question--was never mentioned at all in any of the stories I read. The case was treated as though it were a simple First Amendment challenge brought by a parent on behalf of his child.
However, it turns out even the facts of the case were more complicated. The father who brought suit didn't even have legal custody of the child attending the defendant school (an oversight for which I'm sure whoever does plaintiff shopping in the ACLU is kicking herself this very minute). Because of this, There arose grave doubts as to whether he had standing to sue based on his relationship to his daughter.
Here is a brief overview of standing doctrine: In order to sue in federal court, you must have standing with respect to the claims you raise. Generally what this means is that you must have an actual injury (either an injury to person or property, or a deprivation of rights granted by the federal constitution or laws), and the law or action you are challenging is a cause of that injury. This requirement primarily has the effect of preempting busybody litigation by plaintiffs who are not directly affected by the action challenged, but merely want to do an end-run around the normal political process to have governmental action changed. This rule is founded both in the Article III requirement that the federal judicial power extend only to "cases and controversies," and in prudential concerns on the part of the court that cases should only be decided when the litigants have an interest in litigating them fully.
Applying this rule to Elk Grove, Mr. Newdow (the plaintiff) was not the one in whose presence the pledge of allegiance was being said, and so he seems to have no direct injury as a result of the policy. However, in some cases parents are allowed to assert the rights of their minor children, under a theory of third-party standing. This was one of the grounds that was asserted by Mr. Newdow, and it is the one discounted by the majority opinion. The Court reasoned that, since Mr. Newdow did not have any legal authority over his daughter under state law, he had no right to bring suit on her behalf in federal court.
However, Justice Rhenquist's concurrence disagreed with the holding of no standing, because Mr. Newdow's injury was not vicarious at all, but was merely a dirct injury to his right to control the upbringing of his child. (For a further discussion of this right, see Pierce v. Society of Sisters, Wisconsin v. Yoder.) It therefore argued that the merits of the First Amendment claim should have been reached, and that the pledge should not have been held violative.
Now, as anyone familiar with the current supreme court should know, one should be very suspicious when Stevens and company argue for a contraction of judicial authority, and Rhenquist and the conservatives argue against it. In fact, I would argue that, however lacking in titillating political rhetoric the decision was (except a little bit in Rhenquist's dicta about how the pledge should be upheld), it is an extremely political decision in its foundations. If you get down to the nitty-gritty of the majority's reasoning, you'll find that Stevens is actually carving out a pretty narrow exception to the usual standing doctrine, apparently tailor-made to fit this case (or so Rhenquist argues). Moreover, the reasons why the liberal justices might not want to decide the First Amendment issue just now are reasonably clear: the judiciary (federal and state) is catching a lot of flak right now for its presumptuous attacks on traditional institutions and values, under the aegis of "civil rights." One notable example is, of course, same-sex marriage, which has sparked so much fear of politically unresponsive judiciaries that even states with conservative supreme courts, like Michigan, have moved to preempt cases by amending their constitutions. Instead of being revered as infallible repositories of divinely-inspired justice, judiciaries are increasingly regarded in many contexts as just another sleazy political branch, with its own partisan axe to grind. This demeaning of judicial impartiality has much, I believe, to do with the mounting political controversies surrounding the appointment of members to the federal bench.
The irony of all this is that courts muchly brought themeselves to their current extremity by activism in the first place--through greed for political power. During the Warren years, the Court handed down a number of decisions that represented, if not the political will of the majority, principles that were so self-evident in their justness that a majority of the country soon agreed with them, despite the fact that impediments in the normal political process had stalled enacting them legislatively for many decades. In deciding these cases, the Court departed widely from its prior jurisprudence, and therefore cast a shadow on its infallibility, but also gained a greater amount or popular support than would normally accrue to a non-democratic branch of government. The decisions of the Supreme Court are now treated with a great deal more popular reverence than formerly--it is not only a problem of enforcement, but a problem of politics for Congress to enact a law that is subsequently struck down by the Court. Even as its infallibility has diminished, the court's power has increased.
However, this popular support comes inevitably with the price of popular responsiveness. If the Court decides too many cases in unpopular ways, its support crumbles. And, even if the justices themselves serve for life, the political parties with which the justices ally themselves end up suffering. It is not, therefore, surprising to me that, in an election year, the liberal members of the Court would decline to appear to weigh in on whether God (or Freedom, or Apple Pie) is a good thing or not.
In conclusion, then, I would never go so far as to argue that the Court makes no political decisions--it seems to do so increasingly. I would suggest, however, that the actual outcome of the case has very little to do with how political it may be. Cases with exciting facts like Lane may have very little political content on the part of the justices--they could merely be decided on very straightforward principles that are simply too tedious for the ordinary sod to heed, and, therefore, for the media to report. On the other hand, cases that have long, dull opinions like Elk Grove may conceal deeply political, even unprincipled applications of law, though all we will ever hear about them is that they were "dismissed on a technicality."