Stepping Back From the Fray: Supreme Court Review

Tony Mauro: Mike Newdow, you defied all the advice, you argued the Pledge of Allegiance case Elk Grove Unified School District v. Newdow yourself, and you did very well at it by all accounts. Given the outcome [the Court ruled that Newdow did not have standing to bring the suit on behalf of his daughter because he lacked sufficient custody], do you have any second thoughts about the argument? Was there anything you could have argued differently, or do you think the Court was so eager to duck the merits of your case that there really was nothing you could do?

Michael Newdow: That’s a tough question. None of us know what is in their minds. I think that probably they were pretty intent on not answering this question at this time, especially being an election year. So I don’t think there probably would have been anything I could have done.

One of the things that people spoke of was the fact that, since I was the party and because of the family law aspects that, you know, I was a loose cannon and that bringing in the family law would hurt me. And I did shy away from that, although I didn’t want to discuss it anyhow, because I didn’t think that was really a huge part of the case, but the Court did.

So, I guess, in retrospect, I probably should have addressed that more. Especially Justice [Anthony] Kennedy, right at the beginning of the argument, said, well, you are making your daughter bear the brunt of this.

And I remember when I got that question thinking about a billion things through my mind, and I have a number of answers now that I don’t know if they would have helped or hurt, but I didn’t answer it the way, a way I could have, at least.

Mauro: But do you think the way the Court came out on it, was it really preordained in a sense?

Newdow: To me it was. I mean, the facts of the case � my daughter lives with me 10 days a month. I’m a full dad. And she is told every day that I’m wrong with regard to my religious beliefs. That’s clearly a harm. And the Court didn’t say I didn’t have Article III standing. They just made this thing with this prudential standing saying because it involves family law, we’re not getting involved. It seems, you know, somewhat disingenuous.

This case, you know, had nothing to do with the custody orders. No matter what they ruled, it had no effect either way as a result of the custody orders or as an effect on the custody orders. And yet they said for prudential reasons they are staying � shying away. So I think they were intent on not ruling.

Mauro: Jay Sekulow, you filed a brief in the case against Mike Newdow. What are your thoughts on how it came out?