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Thursday, September 15, 2005

Bashman et al. on Newdow I's precedential effect on the new Pledge case

Those who pay attention to such things are continually amazed at the energy and diligence of Howard Bashman, whose How Appealing blog is consistently a fabulous aggregation of up-to-the-minute links to important things legal. If I'm in the mood to blog on something legal but don't have an inspiration at the moment, I can usually find one by skimming Howard's site, and it's where I always turn first to get details on breaking legal news.

Some folks may not appreciate, though, that in addition to being a prodigious blogging aggregator, Howard is also a star appellate lawyer. My theory is that his instincts and habits on how to gather all those links effectively are directly informed by his knowledge of and curiosity about substantive law. That is, he couldn't be such a great aggregator and linker on legal topics without also being a darned smart lawyer. And the confirmation for my theory comes on those occasions when, rather than just passing along links and pithy summaries of their contents, Howard shares his own views.

This post is Howard's concise explanation of why the federal district judge from California who's just ruled the Pledge of Allegiance unconstitutional went badly, badly wrong in believing himself precedentially bound by the Ninth Circuit panel's decision on the merits in the earlier Newdow case that the Supreme Court reversed on procedural grounds. (The new one is also brought by Michael Newdow, and will inevitably be referred to as "Newdow II"). Regardless of how one comes out on on the merits — whether "under God" in the Pledge violates the First Amendment — I think Howard has convincingly established why the judge got this fairly important (in his view, purportedly outcome-determinative) procedural point wrong. The judge was effectively saying, "I have to strike down the Pledge because my hands are bound by the prior Ninth Circuit panel ruling." And that's just wrong. (Prof. Volokh reached the same conclusion yesterday as well, and so did Patterico and Xrlq, each of whom added many links and a dash of much-needed snark to the soup.)

Ultimately, I don't think this particular error by the federal district judge will make much difference. The way that it might matter would be if the Ninth Circuit were to get the case on appeal and say, "Well, the district judge erred in thinking himself bound by our prior panel opinion in Newdow I, so we're going to vacate and remand back to him to give him another chance to consider the issues after being disabused of the notion that his hands were tied." That happens fairly often when a district judge has made fact findings based on an erroneous interpretation of the law; the court of appeals isn't in the business of resolving factual disputes, and if the facts are indeed disputed and important, they want a district judge to be resolving those disputes after taking and considering evidence with the correct legal principles clearly in mind. But here, I suspect the Ninth Circuit will say, "Regardless of whether the district judge was mistaken in thinking his hands were tied, we're going to proceed on to a determination of the merits, and there's no need for a remand to reconsider his factual findings because the relevant facts are mostly undisputed anyway."

But perhaps the Ninth Circuit panel that gets this case will at least not repeat the district judge's mistake. Hopefully, it will not think its own hands are precedentially tied, and that it can take a fresh look at the legal issues.

Even then, however, I'm not sure it will matter. My prediction is that most randomly selected Ninth Circuit panels are likely to do again in Newdow II what the Newdow I panel did last time, regardless of whether the new panel thinks it's compelled to do that or whether instead it comes to that result after taking a fresh look. (I can't rule out the possibility, though, that if the randomly selected new panel happens to include a convergence of the most judicially conservative and intrepid judges on the Ninth Circuit, it might come out the other way and rule the Pledge constitutional. I just think those are longer odds in the Ninth than they would be in, say, the Fourth, Fifth, or Eleventh Circuits.) I also predict that the en banc Ninth Circuit will again refuse to get involved if the new panel again strikes down the Pledge. And then the Supremes will again take the case — but this time, they'll reach the merits and Justice Scalia will be back in the saddle (instead of having had to recuse himself for ill-considered public remarks about an impending case, as he did while Newdow I was coming up through the system).

Finally, Best of the Web's James Taranto — leading blogospheric chronicler of the "Roe Effect" — ought to be all over the fact that Newdow II is being brought in part purportedly on behalf of two minor children identified as "RoeChild-1" and "RoeChild-2." Those would go into the Oxymoronic Names Hall of Fame, since everyone knows that a "RoeChild" isn't a child at all, but an inconvenient piece of tissue no different than a diseased gallbladder or some liposuctioned fat cells. Perhaps RoeChild-1 and -2 reside and are being compelled to recite the Pledge in Erehwon, California.

Posted by Beldar at 06:43 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Bashman et al. on Newdow I's precedential effect on the new Pledge case and sent a trackback ping are listed here:


(1) Palindrome made the following comment | Sep 15, 2005 7:27:10 PM | Permalink

I'm not a lawyer, I'm a CPA, but does this mean you think we could go back to the early '50s version of the Pledge of Allegiance (which I say anyway)?

(2) Beldar made the following comment | Sep 15, 2005 8:19:31 PM | Permalink

You can say the Pledge with "under God." You can say it without it. You can refuse to say the Pledge at all.

All that is true today, anywhere in the U.S. All that was true yesterday, too.

This case is about whether Michael Newdow can prevent public schools and institutions from encouraging the saying of the Pledge by those who want to say it.

(3) Xrlq made the following comment | Sep 15, 2005 8:39:08 PM | Permalink

I think it would matter if the panel actually followed Judge Karlton's boner and concluded that it was bound by the prior panel's ruling, making Karlton's stupor precedent just as legitimate as Specter's super duper pooper scooper precedent.

If the appellate panel doesn't fall into that trap, and takes a fresh look at the issue as it should, there's a pretty decent chance they'll get it right this time around. Contrary to popular opinion, not all Ninth Circuit judges are moonbats. Sometimes the luck of thedraw puts two of them on a single panel, but as often as not, it doesn't. And the Ninth Circuit upholds the Pledge this time around, the Supremes may deny cert, and Newdow's 16th minute will finally be over.

(4) Beldar made the following comment | Sep 16, 2005 12:11:29 AM | Permalink

Xrlq, I don't disagree with you. But we know at a minimum that there aren't a majority of Ninth Circuit judges who thought that the last panel got the question sufficiently wrong so as to justify rehearing en banc. And it's clearly a high-profile national issue, on which the Ninth was creating a split between the circuits. I think one has to put the odds of the Ninth Circuit reaching a different result this time at way under 50/50.

(5) Steven Jens made the following comment | Sep 16, 2005 12:48:04 PM | Permalink

Even if the appellate ruling isn't actually binding, shouldn't it inform the judgment of a court in the ninth circuit? I would think it at least carries the weight of dictum (though I have to acknowledge that I don't really know how much weight dictum carries).

I would think that, generally, a judge's role in interpreting the law is to adhere to what superior courts would say if his rulings were appealed. And following the superior court's ruling, even if the superior court shouldn't have decided the matter, seems the sensible thing to do.

(6) Xrlq made the following comment | Sep 17, 2005 12:50:11 PM | Permalink

My understanding is that a refusal to re-hear en banc is akin to the Supreme Court denying cert, not evidence of agreement or even non-agreement with the lower court. At most, the fact that they declined to rehear the first Newdow case is evidence that they either didn't think the case was that important (doubtful) or that their involvement was a waste of time because the Supreme Court was going to end up handling the matter anyway.

Steven, a trial court judge should apply existing precedents, not attempt to guess how an issue of first impression will be decided. The Ninth Circuit ruling in the first Newdow case is an excellent predictor of how the Ninth Circuit would rule on this particular case if the same three-judge panel just happened to get reassigned to it. It is worthless as a predictor of how any other panel would rule on the case, including the one that will actually hear this one on appeal.

(7) Stephen Armstrong made the following comment | Dec 2, 2005 11:27:06 PM | Permalink

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