given the standing problem? Didn’t they know that this was an issue? That’s what a couple of people have asked me.
The answer is that they did know. Sometimes, the Court might take a case thinking that it lets them resolve a substantive problem, but there turns out to be a procedural barrier that keeps the case from being ready for Supreme Court resolution. Then, the Court will “DIG” the case, which means “dismiss [the writ of certiorari] as improvidently granted.” That’s often a sign that the clerks didn’t check well enough for procedural barriers, and have thus wasted the Justices’ time.
But here the procedural barrier (Newdow’s lack of standing, caused by his not having the proper custodial rights with regard to his daughter) means that the lower courts should never have considered the case, or so the majority on the Court concluded. To correct this error on the Ninth Circuit’s part, the Court had to agree to hear the case. Otherwise, the Ninth Circuit decision holding the “under God” to be unconstitutional would have remained the law in the states of the Ninth Circuit — erroneously, in the view of the Court’s majority.
What’s more, the procedural barrier here wasn’t an uncontroversial application of existing law: This was the first time the Justices had to face this particular sort of situation, so they had to create a new rule on the matter. And only five of the Justices endorsed this new rule; the other three thought that Newdow did have standing.
So the Court knew that there was a potential procedural obstacle to reaching the substantive Establishment Clause issue — but the Court was right to agree to hear the case in any event.
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