Using standing to avoid the real issue.

Justice Stevens' opinion in Newdow contains a very interesting issue about the use of state law--family law--to determine the scope of standing to sue in federal court. Why should the states be able to determine the power of the federal courts over this case? It should be noted that Justice Stevens normally takes a broader view of standing than the rest of the Court, so there will be much speculation, as there usually is with standing cases, that standing is invoked for the purpose of avoiding saying something about the merits. Here, one will tend to say that the liberal Justices did not want to unleash the furor that would be caused by ordering "under God" out of the Pledge but also did not want to weaken the Establishment Clause, so standing became an attractive escape.

Chief Justice Rehnquist writes a concurring opinion disagreeing with the Stevens opinion about standing and also reaches the Establishment Clause issue. Justices O'Connor and Thomas have also written concurring opinions. So I will have more on all of this later, but right now I've got to take the final steps in getting my Conlaw grades done, as they are due today. If only I had known Newdow would come out this morning I would have had the stamina to finish yesterday! But I promise to have some juicy conlaw things to say later. That's assuming you can find the jurisdictional side of things juicy. I'll try to show why it is. And I'll say some things about the Establishment Clause as well. Later.