The quick answer that comes to mind: Because courts have no authority to
issue "holdings" apart from "judgments" in the first place. That is,
federal courts can't issue advisory opinions apart from a genuine case or
controversy under Article III.
>From: "Marty Lederman" <[EMAIL PROTECTED]>
>Reply-To: Law & Religion issues for Law Academics
><religionlaw@lists.ucla.edu>
>To: "Law & Religion issues for Law Academics"
><religionlaw@lists.ucla.edu>
>Subject: Re: New Pledge of Allegiance Case,and precential effect of
>Ninth
>Cir cuit's earlier Newdow decision
>Date: Wed, 14 Sep 2005 20:43:34 -0400
>
>Why is it inconsistent? Assume a court of appeals that, after briefing
>and
>argument, carefully considers the merits question in case A and holds X.
>The judgment in case A is not binding on lower courts and future panels
>dealing with different parties. Nor does the judgment have res judicata
>effect in such future cases. The holding X, however, is deemed
>"binding"
>in future cases, precisely because the first panel came to conclusion X
>after full briefing, argument and consideration (assuming, of course,
>that
>the holding was not contradicted (reversed) by the court sitting en banc
>or
>by a higher court).
>
>Now let's say a higher court subsequently determines that the court of
>appeals should never have considered case A (or the "merits" questions)
>at
>all -- either becauise the plaintiff didn't have standing, or because
>the
>court didn't have jurisdiction, or because the case wasn't ripe, etc.
>The
>effect of this reversal, or vacatur, might be that the judgment no
>longer
>has any operative effect. But why should the precedential effect of the
>holding change? After all, it was the court's reasoning -- not its
>judgment -- that "bound" lower courts, and other panels, in future
>cases.
>
>
> ----- Original Message -----
> From: A.E. Brownstein
> To: Law & Religion issues for Law Academics
> Sent: Wednesday, September 14, 2005 7:50 PM
> Subject: Re: New Pledge of Allegiance Case, and precential effect of
>Ninth Cir cuit's earlier Newdow decision
>
>
> The District Court opinion did not identify a Ninth Circuit rule of
>precedent on this issue and seemed to be discussing the question as a
>matter of general law. I don't know whether the kind of rule Marty
>describes exists here.
>
> I think Justice Steven's opinion in Newdow reads very much like the
>Court does not think the resolution of this case by the Ninth Circuit on
>the merits was appropriate. Stevens writes, ""In our view, it is
>improper
>for the federal courts to entertain a claim by a plaintiff whose
>standing
>to sue is founded on family law . . . . When hard questions of domestic
>relations are sure to affect the outcome, the prudent course is for the
>federal court to stay its hand rather than to reach out to resolve a
>weighty question of federal constitutional law."
>
> That language seems to me to be inconsistent with the idea that the
>Ninth Circuit's decision should still be considered binding law in the
>Circuit.
>
> Alan Brownstein
>
>
>
>
> At 07:12 PM 9/14/2005 -0400, you wrote:
>
> Severl folks in this thread are writing as if there is some
> inherent,
>or consistent, "right" answer to the question of whether the CTA9 merits
>decision in Newdow is "binding" on district courts "within" that
>circuit --
>or, presumably, on future Ninth Circuit panels -- and whether it makes a
>difference that the panel decision was "reversed" (on prudential
>standing
>grounds), rather than "vacated."
>
> But if I'm not mistaken, whether the prior decision is "binding" in
> a
>future case -- two different questions, really: whether a "lower" court
>in
>some sense "must" follow it, and whether it triggers the rules of stare
>decisis for future panels of the same appellate court -- is solely a
>function of whatever rules of precedent the Court of Appeals chooses to
>implement. These would be analogous to the "rules" the U.S. Supreme
>Court
>has developed to govern (i) when lower courts must follow various
>dispositions of the SCOTUS (holdings declared in majority or plurality
>opinions; affirmances by an equally divided Court; cert. denials; etc.)
>and
>(ii) when the SCOTUS itself should apply stare decisis. (I'm putting
>aside
>here the question whether "higher" courts in fact have the
>constitutional
>power to insist that "lower" federal courts follow their precedents at
>all
>-- the famous counterexample is the district court's (ultimately
>vindicated) refusal to follow Gobitis. There are those who have argued
>that the basic Agostini/Rodriguez de Quijas rule -- that lower courts
>cannot anticipate the SCOTUS's overruling of "governing" precedent -- is
>illegitimate -- but I'm assuming here that it's not.)
>
> I don't know what the Ninth Circuit's rules are in this respect --
> but
>frankly, I don't see any good reason to treat a prior merits opinion
>that
>has been "reversed" on prudential standing grounds any differently for
>purposes of "binding" precedent than if the same opinion had not been
>appealed (or cert. had been denied). Are Alan and David "unconvinced"
>that
>the Court of Appeals has such a rule (which may well be so -- I don't
>know), or is it their view that the CTA9 cannot have such a rule?
>
> Having said all that, I do agree that the question the district
> court
>ought to ask is whether, under CTA9 rules, it is "bound" by a
>circuit-wide
>rule of precedent. If it's not bound, then the court's job is not to
>"predict" what the next CTA9 panel would do, but is instead to attempt
>to
>discern how the case should be decided based on the precedents -- of the
>SCOTUS and the CTA9 -- that are "binding."
>
>
> ----- Original Message -----
> From: "David Cruz" <[EMAIL PROTECTED]>
> To: "Law & Religion issues for Law Academics"
><religionlaw@lists.ucla.edu>
> Sent: Wednesday, September 14, 2005 4:46 PM
> Subject: Re: New Pledge of Allegiance Case, and precential effect
> of
>Ninth Cir cuit's earlier Newdow decision
>
> >
> > I too am unconvinced. If the Court reverses a lower court, it
> says
>it was
> > wrong for the lower court to have reached the merits. Treating a
>decision
> > that wrongly reached the merits as BINDING seems fishy, at best.
>Guess
> > I'll have to look up the lower court law on prudential reversals.
> >
> > David B. Cruz
> > Professor of Law
> > University of Southern California Law School
> > Los Angeles, CA 90089-0071
> > U.S.A.
> >
> > On Wed, 14 Sep 2005, A.E. Brownstein wrote:
> >
> >> The story is correct. The Supreme Court did not vacate the Ninth
>Circuit's
> >> decision in Newdow. It reversed it. The District Judge in the
> new
>case
> >> argues that a reversal on prudential standing grounds does not
>disturb the
> >> merits of the Ninth Circuit decision as precedent. "In sum,
> because
>a court
> >> may reach the merits despite a lack of prudential standing, it
>follows that
> >> where an opinion is reversed on prudential standing grounds, the
>remaining
> >> portion of the circuit court's decision binds the district
> courts
>below."
> >>
> >> I am unconvinced.
> >>
> >> Alan Brownstein
> >> UC Davis
> >
> > _______________________________________________
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>
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