Third, in dealing as Gingrich does with the rights of detainees, you do not need judicial supremacy to say that they have a right to a hearing in court. That is a jurisdiction to resolve individual cases that is conferred on courts through their right to issue habeas corpus. Legislation that stripped them of that right would entrench on the judicial branch. Indeed, no matter what view one takes of judicial supremacy, there is never in individual cases the ability of the President or the Congress to disregard the requirements of Due Process.

Fourth, to the mysterious ultra vires, my views on Newdow are not inconsistent with my general views on standing. The major concern that I have in that regard is with the inability of anyone to challenge on structural grounds decisions of the government that are indeed ultra vires its powers. Thus if Newdow, qua citizen, wanted to challenge the adoption of the Pledge of Allegiance by Congress, he should be able to do so, just like any other citizen. But note that if he won, the only thing that he could insist on is that the government not require the pledge. It does not prevent other people privately from taking it up.

In this instance, however, his ambition was to keep his daughter from having to say the pledge in her classroom. That is not a generalized challenge, but a very specific one. The reason he does not have standing here is that the California family law system gave exclusive custodial rights to the child’s mother, not to him. So we do not have here the situation where no one can challenge the law of general applicability. Any parent could raise that challenge on behalf of his or her children. The argument therefore was that Newdow was the wrong man, not that parents cannot seek to insulate their children from the pledge. Cases like that have been brought on many occasions, including in West Virginia v. Barnett, the flag salute case.