Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
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
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, binding on district courts and future panels, in the first place? 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
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
It seems to me the thing that distinguishes a holding from an advisory opinion is that the holding results from a competently litigated case. By reversing the judgment on the grounds that Newdown lacked standing, the SC was also asserting that the case was not competently litigated -- i.e. litigated by someone with the interest and standing appropriate to serve as the responsible advocate or adversary for the case. David - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED]; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, September 15, 2005 10:18 AM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, binding on district courts and future panels, in the first place? 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
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
1. A court of appeals decision is binding on a district court because lower courts have to follow higher courts. If there's any discretion as to the scope of that rule, the discretion would lie not with the lower courts but somewhere else (i.e., the appeals court's own rules as to precedent, or possibly Congress (see Michael Stokes Paulsen's interesting article in YLJ on similar questions)). Pragmatically, of course, if a district court decides to ignore the court of appeals' prior decisions or to construe those decisions narrowly or to manipulate the line between holdings and dicta, it may or may not get away with it. But speaking of dicta, the reason that dicta is not binding is because it involves reasoning that wasn't necessary to resolve the actual case/controversy between the parties. So for the same reason that dicta is not binding, a court of appeals' decision is not binding where there is no case or controversy. Put another way, if the case/controversy disappears, the entire decision is dicta. 2. A panel's decision is binding on future panels because of the circuit's own rules to that effect (all circuits have such a rule, I believe). The very reason for this rule is that, as we all know, a panel's disposition of a particular issue might be different depending on who is randomly selected to be on that panel. To avoid the spectre of inconsistent rules of law governing a single circuit, subsequent panels are supposed to follow the first panel to resolve a particular issue. (If you could always count on different panels to resolve the same issue in the same way, you wouldn't need a rule of precedent in the first place.) Again, where the previous panel's decision is entirely dicta, I see no reason that subsequent panels would be bound by it. Best, Stuart From: [EMAIL PROTECTED] To: [EMAIL PROTECTED],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: Thu, 15 Sep 2005 15:18:05 + Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, binding on district courts and future panels, in the first place? 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
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Marty makes an excellent point that the pledge case can be distinguished from McCreary County and many other Establishment Clause cases because it deals with religion in the public schools. Footnote 22 may not only have been unnecessary, however, it is unfortunate for another reason. Constitutional doctrine protecting and promoting religious liberty and equality is always going to involve a fair amount of uncertainty if we take these values seriously. Constitutional guarantees have costs and for this area of the law, a lack of clear guidelines and resulting unpredictability is one of those costs. We may be able to do a better job than we have done in mitigating this problem over the last few years, but the problem is always going to be there -- if we take these constitutional values seriously. When judges bemoan the indeterminacy of current case law and ask for more certainty in the law, they should be careful what they wish for. Holding that religious conduct receives no constitutional protection whatsoever against neutral laws of general applicability is a very clear rule that leads to easily predictable results. It accomplishes that certainty by not protecting religious liberty. Similarly, a rule that permits the government to endorse the religious beliefs of the majority and ignore or disparage the beliefs of minorities is a pretty clear rule. We simply allow the polity, or their elected representatives, or elected or appointed officials to chose which religions and beliefs the state will endorse. Here, we achieve clarity and predictability by sacrificing religious equality (as well as religious liberty). There are trade-offs here -- and if a person isn't careful sometimes he can end up trading his birthright for pottage. Alan Brownstein UC Davis At 09:06 PM 9/14/2005 -0400, you wrote: urn:schemas-microsoft-com:vml xmlns:o = urn:schemas-microsoft-com:office:office xmlns:w = urn:schemas-microsoft-com:office:word xmlns:st1 = urn:schemas-microsoft-com:office:smarttags I agree with Anthony that fear of McCreary County likely led the court to take refuge in the court of appeals' prior decision in Newdow. But perhaps the district court need not have worried about applying McCreary and van Orden, or any of the other difficult-to-reconcile decisions of the SCOTUS involving state religious _expression_ outside primary and secondary schools. This case involves young children in the classroom, and thus it ought to be governed by an unbroken line of school cases beginning with Engel, ending with Santa Fe, and including, most importantly, Lee v. Weisman. Here's what I and my co-counsel wrote in an amicus brief in Newdow (http://pewforum.org/religion-schools/pledge/docs/ADL.pdf): In a series of cases spanning almost a half-century, this Court has considered the constitutionality of various forms of state-initiated, or state-approved, religious _expression_ and teaching in primary and secondary public schools. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Epperson v. Arkansas, 393 U.S. 97 (1968); Stone v. Graham, 449 U.S. 39 (1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). In each of those cases, the Court has held that the Religion Clauses of the First Amendment prohibited the public schools from teaching students religious precepts, or inducing students to engage in prayer. The explanation for this unbroken line of decisions involving state-initiated religious _expression_ in public schools is straightforward namely, that young students are impressionable, and are susceptible to embracing the views, beliefs, and norms that their schools (and their teachers) prescribe. Outside the context of religious _expression_ and teaching, the likelihood that students will embrace much of what they are taught is constitutionally tolerable, and generally does not call into question the States attempt to persuade its charges to learn certain truths, or to adopt certain values or lessons at least as long as the students are not required to affirm the States preferred beliefs and ideas, see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), and are permitted to seek their education outside the public schools, see Pierce v. Society of Sisters, 268 U.S. 510 (1925). Indeed, it is one of the principal functions of public schools to inculcate in students certain knowledge, skills, and civic values. Thus, [b]y the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Lee, 505 U.S. at 590-91. The constitutional problem is fundamentally different, however, and the possibility of constitutional harm more pronounced, when it
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do.Of course it may change its mind or judges may have left and been appointed and so on and that could change the result.Steve -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope."Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
If we are really making a practical prediction, why is this one a sound one? Seems to me that much depends on the panel that the case draws; that 3 of 28-odd judges split 2-1 in one direction doesn't tell us much about whether a different 3 will go the same direction. The refusal to rehear the case en banc is also not that helpful, since in practice many votes against a rehearing aren't really votes on the merits -- the judges might just think that, like 99+% of circuit cases, this one doesn't deserve the time of 11 judges, and they might figure that the Court made this mess and should therefore clean it up. So practically speaking I doubt that the earlier panel decision is much of an indication at all of what the 9th Circuit will do, even setting aside the possibility of changed minds or new appointments. Eugene Steve Jamar writes: I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do. Of course it may change its mind or judges may have left and been appointed and so on and that could change the result. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope. Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Judge Karlton reasons that there was Article III jurisdiction in the earlier case, just not prudential standing. He then reasons that the prior Ninth Circuit opinion remains good law except on the issue on which it was reversed by the Supreme Court, namely prudential standing. He notes that the vacating of an opinion strips it of precedential value, but that a mere reversal on other grounds does not. Inasmuch as the Ninth Circuit's error was in considering the merits in the prior case, I have difficulty thinking the prior decision should have any precedential effect. In effect, the reversal was on grounds that call the entire merits decision into question. Mark S. Scarberry Pepperdine University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I'm not sure Steve's right. There are two things the Ninth Circuit knows now that it did not know when it decided the Newdow case. First, it knows that Newdow was unable to persuade O'Connor on the merits. How many government display or prayer cases get struck down on establishment clause grounds without O'Connor at least concurring with the decision? 2. If Breyer's opinion in Van Orden means what I think it means -- which is that Breyer is very unlikely to do anything that substantially disturbs the status quo with regard to government sponsored religious messages, prayers, or displays -- then Newdow won't be able to get Breyer to vote for him either. Without O'Connor and Breyer, Newdow doesn't have a prayer (pun intended), and the Ninth Circuit would face a virtually certain reversal if it holds the Pledge unconstitutional. Alan Brownstein UC Davis At 04:44 PM 9/14/2005 -0400, you wrote: I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do. Of course it may change its mind or judges may have left and been appointed and so on and that could change the result. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope. Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
What is the best available authority on what the 9th circuit might decide? A published decision on the merits. Even if it has been reversed on other grounds.While one could well get a different panel and the court refuse to hear it en banc and so get a different result, as a district court judge, I would still play the fiction that it is the court that decided, not three individuals.So I would, as a district court judge, decide it on the basis of the controlling circuits previously published decision.The prudential grounds argument strikes me as good as just about any for finding it binding, though I am still unconvinced. I guess I would find the use of prudential grounds to buttress my decision to follow the now otherwise defunct decision.As a legal procedural matter, the decision was not by 3 individuals, Eugene, but by the Circuit Court.As a legal precedential matter, one could well argue as Alan does that the substantive merits of the decision by 9th Circuit has been called into question by other decisions at the Supreme Court. The judge chose to take a narrower view and to read a reported case rather than tea leaves.But, if the judge had gone the other way, and noted that there was no binding precedent in the Circuit and cited the information cited by Alan, one could well accuse the judge of engaging in untoward speculation based not on law but on personality -- the sort of things academics and advocates are to do.The 9th circuit is clearly not bound in a mandatory sense by the prior panel's decision now -- though it too could give the prior decision great weight under stare decisis. I probably would. But absent an infirmity in some prudential matter again, I expect this one will result in a decision.SteveOn Sep 14, 2005, at 5:15 PM, A.E. Brownstein wrote: I'm not sure Steve's right. There are two things the Ninth Circuit knows now that it did not know when it decided the Newdow case. First, it knows that Newdow was unable to persuade O'Connor on the merits. How many government display or prayer cases get struck down on establishment clause grounds without O'Connor at least concurring with the decision? 2. If Breyer's opinion in Van Orden means what I think it means -- which is that Breyer is very unlikely to do anything that substantially disturbs the status quo with regard to government sponsored religious messages, prayers, or displays -- then Newdow won't be able to get Breyer to vote for him either. Without O'Connor and Breyer, Newdow doesn't have a prayer (pun intended), and the Ninth Circuit would face a virtually certain reversal if it holds the Pledge unconstitutional. Alan Brownstein UC Davis At 04:44 PM 9/14/2005 -0400, you wrote: I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do. Of course it may change its mind or judges may have left and been appointed and so on and that could change the result. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope." Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"There are obviously two educations.
RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Title: Message As a legal procedural matter, the decision was by the circuit court; but I think we agree that, as a legal procedural matter, a Supreme Court decision that says the Ninth Circuit shouldn't have reached the merits keeps the Ninth Circuit decision from being binding. I had thought that Steve's argument was about practical prediction, not technical legal procedure. And if you're going to be making practical predictions, I don't think the "decision was not by 3 individuals" argument helps. Seems to me that the judge should have made his own decision on the merits, rather than saying that he was bound by the Circuit. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Wednesday, September 14, 2005 2:54 PMTo: Law Religion issues for Law AcademicsSubject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decisionWhat is the best available authority on what the 9th circuit might decide? A published decision on the merits. Even if it has been reversed on other grounds. While one could well get a different panel and the court refuse to hear it en banc and so get a different result, as a district court judge, I would still play the fiction that it is the court that decided, not three individuals. So I would, as a district court judge, decide it on the basis of the controlling circuits previously published decision. The prudential grounds argument strikes me as good as just about any for finding it binding, though I am still unconvinced. I guess I would find the use of prudential grounds to buttress my decision to follow the now otherwise defunct decision. As a legal procedural matter, the decision was not by 3 individuals, Eugene, but by the Circuit Court. As a legal precedential matter, one could well argue as Alan does that the substantive merits of the decision by 9th Circuit has been called into question by other decisions at the Supreme Court.The judge chose to take a narrower view and to read a reported case rather than tea leaves. But, if the judge had gone the other way, and noted that there was no binding precedent in the Circuit and cited the information cited by Alan, one could well accuse the judge of engaging in untoward speculation based not on law but on personality -- the sort of things academics and advocates are to do. The 9th circuit is clearly not bound in a mandatory sense by the prior panel's decision now -- though it too could give the prior decision great weight under stare decisis. I probably would. But absent an infirmity in some prudential matter again, I expect this one will result in a decision. Steve On Sep 14, 2005, at 5:15 PM, A.E. Brownstein wrote: I'm not sure Steve's right. There are two things the Ninth Circuit knows now that it did not know when it decided the Newdow case. First, it knows that Newdow was unable to persuade O'Connor on the merits. How many government display or prayer cases get struck down on establishment clause grounds without O'Connor at least concurring with the decision? 2. If Breyer's opinion in Van Orden means what I think it means -- which is that Breyer is very unlikely to do anything that substantially disturbs the status quo with regard to government sponsored religious messages, prayers, or displays -- then Newdow won't be able to get Breyer to vote for him either. Without O'Connor and Breyer, Newdow doesn't have a prayer (pun intended), and the Ninth Circuit would face a virtually certain reversal if it holds the Pledge unconstitutional.Alan BrownsteinUC DavisAt 04:44 PM 9/14/2005 -0400, you wrote: I don't think it is binding as a technical matter, but practically speaking, if the 9th Circuit rules one way on the merits in one case, one would expect them to do so again. Since the S Ct did not rule on the merits, there is no binding US S Ct precedent and one looks for the best persuasive authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do.Of course it may change its mind or judges may have left and been appointed and so on and that could change the result.Steve-- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope."Reinhold Neibuhr___To post, send
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I agree he should not have said he was bound by the Circuit. But, and here is where we disagree, I guess, I don't see the issue as a tabula rasa -- the 9th Circuit has spoken directly on this exact issue and I would respect that and not easily decide it as if it were a completely new issue. To do otherwise calls to mind the New Yorker cartoon with a judge handing a decision over the bench to a litigant's lawyer while the judge says "Of course, that's just an opinion."SteveOn Sep 14, 2005, at 5:58 PM, Volokh, Eugene wrote: As a legal procedural matter, the decision was by the circuit court; but I think we agree that, as a legal procedural matter, a Supreme Court decision that says the Ninth Circuit shouldn't have reached the merits keeps the Ninth Circuit decision from being binding. I had thought that Steve's argument was about practical prediction, not technical legal procedure. And if you're going to be making practical predictions, I don't think the "decision was not by 3 individuals" argument helps. Seems to me that the judge should have made his own decision on the merits, rather than saying that he was bound by the Circuit. Eugene -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"Any intelligent fool can make things bigger, more complex, and more violent. It takes a touch of genius - and a lot of courage - to move in the opposite direction."Albert Einstein ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
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 Quijasrule -- 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 havesuch a rule? Having said all that, I do agree that the question the district court ought to ask is whether, underCTA9 rules, itis "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 toattempt to discernhow the case should be decidedbased 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
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 judgmentin 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 theholding 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 BrownsteinAt 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"
RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I think the best explanation for the district judges decision to rely on the 9th Circuit opinion is his own (remarkably candid) explanation. It appears in fn22, at the very end of the opinion. For convenience, Ive cut and pasted it below: 22 This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Courts recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nations asserted religious heritage, and thus are permitted. As last terms cases, McCreary County v. ACLU, 125 S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125 S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster. It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that this is a Christian nation. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting under Christ for under God in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Wednesday, September 14, 2005 8:10 PM To: religionlaw@lists.ucla.edu Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I agree with Anthony that fear of McCreary County likely led the court to take refuge in the court of appeals' prior decision in Newdow. But perhaps the district court need not have worried about applying McCreary and van Orden, or any of the other difficult-to-reconcile decisions of the SCOTUS involving state religious _expression_ outside primary and secondary schools. This case involves young children in the classroom, and thus it ought to be governed by an unbroken line of school cases beginning with Engel, ending with Santa Fe, and including, most importantly, Lee v. Weisman. Here's what I and my co-counsel wrote in an amicus brief in Newdow (http://pewforum.org/religion-schools/pledge/docs/ADL.pdf): In a series of cases spanning almost a half-century, this Court has considered the constitutionality of various forms of state-initiated, or state-approved, religious _expression_ and teaching in primary and secondary public schools. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Epperson v. Arkansas, 393 U.S. 97 (1968); Stone v. Graham, 449 U.S. 39 (1980) (per curiam); Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). In each of those cases, the Court has held that the Religion Clauses of the First Amendment prohibited the public schools from teaching students religious precepts, or inducing students to engage in prayer. The explanation for this unbroken line of decisions involving state-initiated religious _expression_ in public schools is straightforward namely, that young students are impressionable, and are susceptible to embracing the views, beliefs, and norms that their schools (and their teachers) prescribe. Outside the context of religious _expression_ and teaching, the likelihood that students will embrace much of what they are taught is constitutionally tolerable, and generally does not call into question the States attempt to persuade its charges to learn certain truths, or to adopt certain values or lessons at least as long as the students arenot required to affirm the States preferred beliefs and ideas, see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), and are permitted to seek their education outside the public schools, see Pierce v. Society of Sisters, 268 U.S. 510 (1925). Indeed, it is one of the principal functions of public schools to inculcate in students certain knowledge, skills, and civic values. Thus, [b]y the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Lee, 505 U.S. at 590-91. The constitutional problem is fundamentally different, however, and the possibility of constitutional harm more pronounced, when it comes to a schools inculcation of religious beliefs and values, for, as this Court explained in Lee, [t]he First Amendments Religion Clauses mean that religious beliefs and religious _expression_ are too precious to be either proscribed or prescribed by the State. Id. at 589. For that reason, it is a timeless lesson of the Religion Clauses that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. Id. at 592. Just as in Lee, the present case implicates state-prescribed religious affirmation in public primary and secondary schools. Accordingly, as in Lee, the controlling precedents of this Courts public-school cases lead inexorably to the conclusion that the religious affirmation that the Elk Grove School District prescribes, as an integral part of a daily patriotic exercise, violates the Religion Clauses and such a holding follows straightforwardly from the Courts school cases without reference to [the Courts Religion Clause] principles in other contexts. Id. at 586. Therefore, this case, like Lee, does not require [the Court] to revisit the difficult questions dividing [the Justices] in recent cases involving Religion Clause questions outside the public-school context. Id. Thus, for example and contrary to what the United States implies, see Brief for the United States as Respondent Supporting Petitioners (U.S. Br.) at 26-31 this case does not require the Court to resolve difficult issues concerning other official governmental invocations of God or religion outside the school context (such as the currency notation In God We Trust or this Courts tradition of
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
If that was the judge's reasoning, then regardless of whether hisultimaterulingwas legally right or wrong, he doesn't understand his job. Judges aren't supposed to rule based one what they think is the right thing or the wrong thing. That's what legislators do. Judges are supposed to rule based on what the law says, regardless of whether or not the end result fits with what they thinkqualifies as"do[ing] the right thing". Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 7:10 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems.Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Brad assumes that when I said the judge "wanted to do the right thing," I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally right thing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing. However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons pretty well. Art Spitzer In a message dated 9/14/05 9:20:08 PM, [EMAIL PROTECTED] writes: If that was the judge's reasoning, then regardless of whether his ultimate ruling was legally right or wrong, he doesn't understand his job. Judges aren't supposed to rule based one what they think is the right thing or the wrong thing. That's what legislators do. Judges are supposed to rule based on what the law says, regardless of whether or not the end result fits with what they think qualifies as "do[ing] the right thing". Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 7:10 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
On Wed, 14 Sep 2005, Marty Lederman wrote: 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. I think the argument would be that the later determination about standing means that the first court of appeals decision NEVER SHOULD HAVE rendered a *holding* at all. It improperly exercised the judicial power of the United States. That could support an argument that the reasoning of those randomly selected three (or two, as it turns out) judges should not be binding in subsequent proper exercises of the judicial power in the Ninth Circuit. That doesn't necessarily mean that it would be *unconstitutional* for the Ninth Circuit to adopt the district court's approach to stare decisis. But from the lack of citation, I'm assuming the Ninth Circuit has not so held. And it's not intuitively clear to me that the district court's approach is one that SHOULD be adopted, although I countenance that possibility -- thus perhaps distinguishing myself from Tom Goldstein, who on NPR today said that the district court just didn't understand that it wasn't bound by [Newdow III] since the Supreme Court had reversed that case. Of course, since he was doing commentary on the Roberts hearing, I assume he had read neither the court's opinion nor our illuminating discussion on this learned listserv. ;^) David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge "wanted to do the right thing" as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, much less a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judge requires enough moral courage to do what your job requires of you, regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position toaccuratelyunderstand his motivations based on the quoted section of the opinion, so I will look forward to reading and learning from what I read here from the learned assemblage. Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge "wanted to do the right thing," I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally right thing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing.However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons pretty well.Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Let me recommend Howard Bashman's post on the precedent issue at How Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm 9/14/05 post.) He presents arguments for the following conclusion: In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today's ruling is really, really wrong. Mark Scarberry Pepperdine -Original Message- From: Brad Pardee To: Law Religion issues for Law Academics Sent: 9/14/2005 8:00 PM Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge wanted to do the right thing as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, much less a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judge requires enough moral courage to do what your job requires of you, regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position to accurately understand his motivations based on the quoted section of the opinion, so I will look forward to reading and learning from what I read here from the learned assemblage. Brad - Original Message - From: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge wanted to do the right thing, I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally right thing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing. However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons pretty well. Art Spitzer ATT59383.txt ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Simply on the predictive issue: (1) Does the Ninth Circuit have a related cases rule, and (2) if so, would the appeal of this decision fall within the rule? - Original Message - From: Scarberry, Mark [EMAIL PROTECTED] Date: Wednesday, September 14, 2005 11:12 pm Subject: RE: New Pledge of Allegiance Case, and precential effect of NinthCir cuit's earlier Newdow decision Let me recommend Howard Bashman's post on the precedent issue at How Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm 9/14/05 post.) He presents arguments for the following conclusion: In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today's ruling is really, reallywrong. Mark Scarberry Pepperdine -Original Message- From: Brad Pardee To: Law Religion issues for Law Academics Sent: 9/14/2005 8:00 PM Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge wanted to do the right thing as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, muchless a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judgerequires enough moral courage to do what your job requires of you,regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position to accurately understand his motivations based on thequoted section of the opinion, so I will look forward to reading andlearning from what I read here from the learned assemblage. Brad - Original Message - From: [EMAIL PROTECTED] ') [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu ') religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge wanted to do the right thing,I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree withhim that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally rightthing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing. However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons prettywell. Art Spitzer ATT59383.txt ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
