Politics & Policy

Still Standing

The Supreme Court upheld a vital doctrine in Newdow.

Let’s suppose, for the sake of argument, that you and I are watching an Opening Day game in the National Football League, say, with the San Francisco 49ers playing the Atlanta Falcons at Candlestick Park. (Given the state of my bank account, let’s also say that you bought the tickets.) The Falcons have the ball at midfield. Quarterback Michael Vick heaves the ball into the air in a perfect arc. Falcons wideout Peerless Price makes a circus catch at the back of the end zone, right in front of where we’re sitting. However, the referee signals that the pass is incomplete because Price had one foot out of bounds when he caught the ball. The crowd is silent, waiting to see if the Falcons head coach will challenge the ruling on the field.

From where you and I sit, it looks as though the referee got it wrong, that Price had both feet inbounds when he caught the ball. If Atlanta head coach Jim Mora Jr. appeals the decision, the instant replay will likely show that Price did make the catch legally for a Falcons touchdown. However, if the referee doesn’t find “conclusive” evidence to overturn the call, the Falcons will have wasted a valuable timeout. It’s a tough decision.

However, there is no question that it’s Coach Mora’s decision to make. Even though you and I, from where we sit, have the best angle on the play, a better angle even than the official who made the call, we can’t make the decision to challenge the play. The same goes for the most rabid Falcons fan watching back home in Atlanta, or the announcers up in the booth, or the post-game pundits on television. All of us may have an interest in the outcome of the play, but none of us have the right to appeal the decision. The only person on the planet who has the standing, or the legal authority, to challenge the play is the head coach–and, not coincidentally, the head coach is also the person who will be held responsible for making the choice, and who will be accountable if the replay shows that the receiver did, in fact, step out of bounds.

This common-sense example serves to illustrate the legal doctrine of standing, which was illustrated most recently, and perhaps most famously, in the recent Elk Grove Unified School District v. Newdow case involving the constitutionality of the “under God” phrase in the Pledge of Allegiance. “Standing” is simply the legal right to effectively pursue a legal claim against another party. It is not simply the right to sue; anyone who can get by the twin barriers of common sense and the filing fee can bring a frivolous lawsuit. A potential litigant has to show the court that she has a claim that may be litigated, and that she possesses the proper standing to litigate that claim. “In every federal case,” the Newdow Court wrote, “the party bringing the suit must establish standing to prosecute the action.”

The standing doctrine, then, is not some trivial technicality, but a first principle of jurisprudence. Standing achieves two important goals. First, it serves to keep busybodies and kibitzers out of the court system by only allowing those individuals or groups who are the actual stakeholders to litigate a claim. (Busybodies and kibitzers have their say–and often do–via the amicus, or friend-of-the-court brief.) Second, as the Court acknowledged in Newdow, the standing doctrine is an effective limitation on the power of courts to manufacture decisions. Quoting a 1983 opinion by Judge Robert Bork, the Court found that standing is a prudential brake on “the powers of an unelected, unrepresentative judiciary in our kind of government.”

In Newdow, the plaintiff argued that he had standing to exercise the rights of his daughter not to hear the “under God” phrase at school. Courts routinely allow parents or guardians to sue to uphold the rights of their children under the so-called “next friend” doctrine. However, the Court found that the plaintiff’s right to act as “next friend” for his daughter was limited by the ongoing dispute between the plaintiff and the child’s mother over the appropriateness of the lawsuit; a California court granted the mother the sole right to make decisions concerning the child’s welfare. While the Court recognized that Michael Newdow might have standing in certain instances–to enforce his visitation rights, for example–he did not have standing to challenge the Pledge of Allegiance on behalf of his child.

Given the attention lavished on this case, and the complexity of the standing doctrine, it’s not surprising that the reporters covering the Newdow decision got things wrong. Dahlia Lithwick, Slate’s snarky Supreme Court specialist, noted that most reports on the case found that the Court “supposedly ducked and dodged the tricky issue, hiding from the political fallout of a tough religious question behind a convenient lawyer’s trick of ruling on a ‘technicality.’” The reliable Linda Greenhouse, in the New York Times, correctly characterized the ruling as being “procedural” in nature. But most writers followed the contemporary wisdom and repeated that Newdow was decided on a mere “technicality”.

Whatever the standing doctrine may be, it’s no technicality. Standing is a necessary and vital part of our legal system, serving a vital role in keeping frivolous and baseless lawsuits out of federal courts. If courts failed to uphold the standing doctrine in cases like Newdow, everyone with an axe to grind would be in federal court every day complaining about something, from the constitutionality of the Pledge of Allegiance right down to whether the referee muffed the call in last Sunday’s football game.

And I don’t know about you, but I think the instant-replay process in the NFL takes enough time as it is without getting the Ninth Circuit involved every time there’s a questionable call in a 49ers game.

Curtis Edmonds is an attorney in Atlanta, Georgia. He recently completed his first novel, excerpted here.


The Latest