Newdow's Revenge


As one of the inquisitors at the Roberts confirmation hearing mentioned a little while back, Michael Newdow, the atheist who last year got a talk-to-the-gavel-cause-the-robe-ain't-listening from the Supreme Court when he challenged the inclusion of the words "under god" in the Pledge of Allegiance, has won in a district court representing two other families raising the same claim. (Whichever imbecile is speaking now just interpreted the ruling as meaning that it violates the Constitution "when an American recites the Pledge"—as opposed to government employees reciting it daily in a government funded and operated school.) James Joyner at Outside the Beltway adds:

Except that ruling was made by a three judge panel and the 9th Circuit as a whole overruled it and SCOTUS ruled the father had no standing.

Now, as I understand the history of the case, the 9th circuit didn't rehear the case en banc; the original panel just issued a stay pending Supreme Court review, and that the Supremes ruled Newdow lacked standing has no bearing on his representing these other families.

I agree with the decision, but this seems like a bad hill to die on. Under a standard that prohibits state endorsement of any particular religious belief (or of religion over unbelief), which strikes me as the right one, this ought to be an easy call, especially given the legislative history of the insertion of the phrase "under god". But given where public opinion on this stands—and the opportunities for demagoguery against "unelected judicial tyrants" it affords—I have no real confidence of courts up the chain making the right call here. Which risks sacrifing a perfectly good legal principle that, at the end of the day, isn't a particularly big deal. If this stands, I'll be pleased, but very, very surprised.