The only real point of interest in the last couple of days that has not been covered ad nauseum in the blawgosphere and MSM is the way a federal district judge yesterday pointed out how some prudential doctrines are imprudent. I am referring, of course, to Newdow. To refresh your memory, Judge Schwartz of the Eastern District of California dismissed Newdow's 2000 lawsuit alleging identical conduct by adopting Magistrate Judge Nowinski's recommended holding that the Pledge of Allegiance as codified at 4 U.S.C. § 4 does not violate the Establishment Clause. The Ninth Circuit reversed, holding that the Pledge does violate the Establishment Clause. The Supreme Court, however, evaded the issue on a different theory: That, because Newdow was not the residential custodial parent of his daughter, he had no standing to sue as her "best friend."1
Undeterred, Newdow refiled a virtually identical suit with virtually identical allegations, but this time on behalf of two other individuals (and their children) who did not have the same standing flaw. Judge Karlton (also of the Eastern District of California) held that, on the basis of the Ninth Circuit opinion that he characterized as having been overturned only on "other grounds," he was bound to find the Pledge unconstitutional. Howard Bashman points out that, under standing doctrine as it now exists, Judge Karlton was probably incorrect:
[Judge Karlton's opinion] cites precedents for the proposition that a court may reach the merits where the existence of prudential standing is especially difficult to resolve. But the district court's decision severely misapplies these precedents. A more accurate statement of these holdings is that where the question whether a plaintiff satisfies prudential standing requirements is especially difficult to decide, and on the merits a ruling against the plaintiff is relatively easy, the court may resolve the case against the plaintiff on the merits. I am unfamiliar with any precedent, prior to today's ruling, holding that where the plaintiff's ability to satisfy prudential standing requirements is too difficult to decide, the court can sidestep the standing question and rule against the defendant on the merits. Yet by allowing the Ninth Circuit's earlier merits ruling to stand in a case where the plaintiff lacked prudential standing, that is the effect of today's ruling.
Have you spotted the critical assumption in this passage? It's fairly obvious if you're looking for it, and difficult to find if you are not. It's a question of the theory of federal jurisdiction. In law school, we have beaten into our heads repeatedly that federal courts have "limited" jurisdiction. And it's true; Article 3, § 2 clearly does have limits to it. Mr Bashman accurately states the prevailing theory of how those limitations work: That they do not extend to the limits of the language in the Constitution, but only as far as the Court or Congress explicitly provides within those limits.2 Now look again at what that theory implies: That one can only get an adverse finding on the merits when a court's prudential standing power is "especially difficult to resolve." The converse case is rather disturbing, particularly when combined with recent Congressional attempts to limit jurisdiction to challenge the constitutionality of statutes and executive actions: That by making a facial showing that it's hard to show standing—a doctrine that even proponents of the most-restrictive view of federal subject-matter jurisdiction must admit is less than clear—a defendant can evade all judicial review of an allegedly unconstitutional practice.
The short criticism of this standing theory—and, as I noted, Mr Bashman's statement of the theory and its effect accurately represents the mainstream—is that it is inconsistent with most other theory on jurisdiction. In particular, it is inconsistent with the well-developed theory of personal jurisdiction, which generally allows defendants another means to evade judicial review. However, this inconsistency is seldom discussed in law school, never in cases, and only very rarely in academic articles. So, while I think Judge Karlton was wrong as a matter of precedent in his holding that he is per se unable to find in favor of the codified Pledge's constitutionality, I think at a deeper, philosophical level he is probably correct. He may not be able to overcome the Pope's decree, but the earth nonetheless moves.3
- Proving, once again, that "family law" is antithetical to good decisionmaking, whether judicial or otherwise.
- On the other hand, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (a right implies a remedy, which in turn implies a proper forum that can adjudicate that remedy).
- On the merits, I think the Pledge as codified probably is unconstitutional, although it's a somewhat narrow question under existing doctrine; that the school district policy is also unconstitutional for compelling reasons explained in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); and that this whole argument is merely a relic of McCarthyism, and thus reflects paranoia, bigotry, and stupidity whatever its constitutional validity. In short, even if Congress (and the school district) had the constitutional power to impose this particular wording—which is at best dubious—doing so was remarkably stupid, short-sighted, insensitive, and ridiculous.