St. John's Law Review Volume 85 Number 2 Volume 85, Spring 2011, Number 2 Article 2 April 2014 Nonestablishment, Standing, and the Soft Constitution Steven D. Smith Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Smith, Steven D. (2011) "Nonestablishment, Standing, and the Soft Constitution," St. John's Law Review: Vol. 85 : No. 2 , Article 2. Available at: https://scholarship.law.stjohns.edu/lawreview/vol85/iss2/2 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact
[email protected]. NONESTABLISHMENT, STANDING, AND THE SOFT CONSTITUTION STEVEN D. SMITHt It is not usual for legal scholars working in establishment clause jurisprudence-and it is especially not usual for me-to say nice things about what the Supreme Court has done to the subject. But that is what I mean to do today. I don't want to be too agreeable or cheerful, though, so this time, although commending the Court, I am going to take issue with the commentators. More specifically, I want to praise a recent development that most commentators seem to deplore-namely, the Court's recent practice of using the slightly disreputable doctrine of standing as a device to avoid deciding Establishment Clause cases on the merits. Thus, in Elk Grove Unified School District v. Newdow,' the Court used a dubious "prudential" standing doctrine to avoid deciding whether the words "under God" in the Pledge of Allegiance were unconstitutional.