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Precedential Effect of Reversed Decisions:

A federal district court in Sacramento has just held that reciting the Pledge of Allegiance in K-12 public school classes is unconstitutional, because it psychologically coerces students to say the "under God" and thus violates the Establishment Clause. Students aren't legally required to say any of the pledge, but the theory, which has pretty substantial foundations in the Supreme Court's precedents, is that they are in any event psychologically coerced, since omitting the "under God" will expose them to opprobrium from their peers.

Interestingly, the court held that this is so because of the binding effect of the Ninth Circuit decision a couple of years ago, the same one that was reversed by the Supreme Court. Recall that the Supreme Court reversed the Ninth Circuit decision on procedural grounds — because Michael Newdow didn't have custody of his daughter, the one who was supposedly being coerced by the Pledge recitation, the Court held that he wasn't entitled to sue. The Court, however, reversed the decision rather than vacating it, and the district court here held that "A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority." See Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) ("A decision may be reversed on other grounds, but a decision that has been vacated has no precedential authority whatsoever."); Pines Land Co. v. U.S., 274 F.3d 881, 894 n.57 (5th Cir. 2001) ("This case illustrates the important difference between our treatment of a panel opinion after vacatur by the Supreme Court and our treatment when a judgment is reversed on other grounds. While our prior opinion in Leiter Minerals II did not bind the Little Lake panel because it was vacated, the opinion in Little Lake binds us because only the judgment was reversed on other grounds.").

This may sometimes be a plausible distinction: For instance, if a court of appeals makes two separate legal rulings in one decision, and the Supreme Court reverses the court as to one, there really hasn't been a reversal of the second legal ruling, and it may well still be properly seen as precedent.

But here the first ruling (about Newdow's standing) that the Court reversed had to do with whether the court of appeals should even have heard the case and made the second ruling (about the constitutionality of the Pledge recitation). The Court essentially ruled that the Ninth Circuit shouldn't have reached the substantive question of the Pledge's constitutionality. I would therefore think that the Ninth Circuit's substantive decision would therefore lose any precedential value it had, since in the Court's view this value was essentially ill-gotten.

Judge Karlton, though, took a different view. Now there'll almost certainly be an appeal, and a new Ninth Circuit panel will have to decide for itself whether it's bound by the prior panel's decision. I predict that the new panel will say that it's not bound (and thus disagree with Judge Karlton on this score). But, hey, I'd have predicted the same about Judge Karlton's decision, and I'd have been wrong. So we'll see what happens.

Timothy (mail) (www):
In high school I flat refused to say the pledge, and none of my peers ever got on me about it. This is much less of a big deal than the plantiffs are making out of it. Bloody rediculous, it is.
9.14.2005 6:32pm
Timothy (mail) (www):
Ridiculous, rather. Me know speel gud.
9.14.2005 6:33pm
guest:
I also refused to say the pledge at my public high school, and was criticized by peers and and teachers. I was also disciplined by the school at first, but as the school year wore on, that stopped. Anyway, I guess it depends a lot on the culture of your town, but in some places, kids really do get a lot of grief for not saying the pledge.
9.14.2005 6:39pm
Eugene Volokh (www):
Where did you go to high school? And would you have felt the same way when you were in third grade (like RoeChild-1 was)? I think the use of "under God" in the Pledge should be constitutional, despite the pressure it puts on some students to say "under God," but I'm not sure one can so quickly dismiss the existence of this pressure.
9.14.2005 6:39pm
guest:
I went to high school in a medium-size Georgia city (not Atlanta). In the third grade, I had no personal objection to reciting the pledge, but even if I had not wanted to recite it, I think I would have gone along with the group at that age and recited it anyway.
9.14.2005 6:45pm
Scipio (mail) (www):
I'm not sure I understand Judge Karlton at all. If standing is a threshold requirement for a cause or controversy, then surely failing standing any precedent arising from the substantive matter of the case is void?
9.14.2005 6:46pm
BruceM (mail) (www):
cases are cited with the notation "rev'd on other grounds" all the time.
9.14.2005 6:50pm
Guest2 (mail):
The interplay between standing and subject-matter jurisdiction has nagged at me for a long time. Some years ago, I tried to argue to a very smart &usually fair state-court judge that plaintiff's lack of standing meant that the court didn't have subject-matter jurisdiction. The judge just about bit my head off. (But he did grant our motion to dismiss, for lack of personal jurisdiction.)
9.14.2005 6:50pm
Edward A. Hoffman (mail):
I believe the Supreme Court based its ruling on a brief Newdow's ex-wife filed after cert was granted, but that she hadn't filed anything comparable with the Ninth Circuit.

The situation is (roughly) analogous to one in which the petitioner dies after the Supremes grant cert. It would be an error for the Supremes to decide the case under those circumstances, but this development has no retroactive effect on the decision the circuit court made while he was alive.

If the Ninth didn't have the ex-wife's input, it cannot be faulted for making the ruling that it did and thus did not err. If I'm right that the Supreme Court dismissed the case based on materials which didn't exist at the time of the Ninth Circuit's decision, I'd say that the decision is precedent just like any other.
9.14.2005 6:51pm
Anderson (mail) (www):
Karlton's point is that the panel's error was legal, not jurisdictional.

Had SCOTUS reversed on Article III standing, then it would've been a jurisdictional error: the panel didn't even have the power to take up the question.

But they reversed. And while Prof. V's point is a good one, that they shouldn't have reached the merits given the lack of prudential standing, the fact remains that they did, and SCOTUS reversed on the standing issue alone.

I can see a cautious district judge's deciding that, where doubt exists as to whether a precedent binds him, erring on the side of assuming that it does. That sounds like the opposite of "judicial activism," in fact.
9.14.2005 6:52pm
Paul Gowder (mail):
Eugene: I know of at least one case where the circuit court pretty much openly defied the Supreme Court, and in a heavy First Amendment area too.

Check out Church of Scientology v. Behar, 238 F.3d 168 (2nd Cir. 2001). Some background: the Second Circuit, in Herbert v. Lando. 781 F.2d 298 (2d Cir.1986), created an "incremental harm" doctrine in defamation law. A few years later, the 9th circuit relied on that doctrine and got reversed in Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), which renounced the notion in no uncertain terms.

So what did the Second Circuit do in Behar? Well, first it renamed the doctrine to "subsidiary meaning" (with sophistries to "distinguish" them) and decreed: "Our holding in Herbert is still the law of this Circuit[.]"

Cute, huh? This is sort of the mirror image of what you're posting about: Herbert wasn't actually reversed, but it had clearly been repudiated, and the Second Circuit followed it anyway...
9.14.2005 6:54pm
Marcus1:
Eugene,

>I think the use of "under God" in the Pledge should be constitutional, despite the pressure it puts on some students to say "under God,"<

Have you explained this view? Are you one of those who believes that freedom from establishment of religion actually only really means freedom from establishment of a specific religious doctrine?

I find it funny what people will pass off as not really establishing religion. Giving money to religious schools, to faith-based charities, creating faith-based jails, none of that is really establishing religion, they say. At some point one wonders if they're waiting for somebody to put up a sign on the door of Congress saying "Religion hereby established."

And then they pretty much did, putting it in our national motto, on our money, in our pledge of allegiance, all more than a century after our nation's founding. But, then, no, that's not establishing religion either. I mean, wtf.
9.14.2005 6:57pm
Cal Lanier (mail) (www):
Here's what I don't understand: why isn't the law that added the words "under God" unconstitutional? I have no problem with ceremonial deism. But it's not ceremonial if Congress specifically added the words to define one belief system as less than the others.

So if the words "under God" are constitutional, does that mean that Congress can then make other laws that prefer belief over non-belief?
9.14.2005 7:09pm
MDM (mail) (www):
I had a friend in high school (in Texas, no less) who was Canadian and did not say the pledge. He stood up, but did not say the words, place his hand over his heart, or anything else.

I think it's far more difficult when you're dealing with young kids, though, in terms of potential peer pressure and harassment. By the time they reach Jr. high or High School, it's "cool" because it's a way of showing disrespect for authority.
9.14.2005 7:20pm
Dave Hardy (mail) (www):
1. Curiously, US v. Miller, the firearms case, involved a reversal rather than vacatur (distinguishable, perhaps in that it wasn't on other grounds ... district court strikes National Firearms Act without taking evidence, Supremes find the critical question can't be decided via judicial notice, and reverse and remand. Might this stand for the proposition that (at least in that district) the precedent is that if the critical question can be proven, the challenging party wins?

2. I've always thought standing a profoundly fouled up area of law. "Feelings" are enough in 1st Amendment cases (pressured a bit, or made to feel an outsider) and environmental cases (aesthetic standing, being made to see the unpleasant or being incapacitated, or just having some reduced probability, of seeing the pleasant). In any other context, if you argue feelings you'd laughed at -- "Ever hear of 'harm in fact,' counsel?" E.g., numerous cases involving pre-enforcement challenges to criminal laws, which regularly get bounced on standing grounds, no matter how strong the fear of prosecution and how strong the resulting pressure to do that which is said to be unconstitutional.
9.14.2005 7:23pm
Elias:
The Court essentially ruled that the Ninth Circuit shouldn't have reached the substantive question of the Pledge's constitutionality. I would therefore think that the Ninth Circuit's substantive decision would therefore lose any precedential value it had.
But even if the Ninth Circuit shouldn't have reached the substantive question, the fact is that it did. It expressed its position on this issue. And it's entirely appropriate, I would think, for a lower-level judge to feel bound by that expression.

Judge Kozinski has written:
There's an interesting question at our [appellate] level that Judge Reinhardt and I debate all the time. . . . He and I both agree that as an intermediate court judge, you have to follow Supreme Court precedent as long as it is directly on point. But what if you don't have something that's directly on point? What is your responsibility as an intermediate appellate judge?

There are two different views. . . . You can say, look, what I'm going to look at is what I think the Court today would do. . . . [Circuit Judges] should recognize the makeup of the Supreme Court and try to guess how they would rule on the issue today. That's my view. (emphasis added)
Might Judge Karlton subscribe to a similar judicial philosophy? If so, he might reasonably have concluded that the superior court had already expressed "how [it] would rule" on this issue. And he might have felt bound by that.

I haven't read Judge Karlton's opinion, so perhaps my speculation here is off-base. And, of course, there are important differences between the district--circuit relationship and the circuit--Supreme relationship.

I'm just sayin'.
9.14.2005 7:23pm
Anderson (mail) (www):
Might Judge Karlton subscribe to a similar judicial philosophy? If so, he might reasonably have concluded that the superior court had already expressed "how [it] would rule" on this issue. And he might have felt bound by that.

Of course, any circuit court judge knows who's on the SCOTUS, more or less; whereas which 3-judge panel you'll draw is up to chance.

But panels are supposed to defer to previous panels, so that's the next question: will a new panel think that it's bound by the first panel's decision?
9.14.2005 7:40pm
Joe Jackson:
Elias, your Kozinski quote would be apt if that is what Judge Karlton actually did. But as Eugene pointed out in the original post, the court did not try to guess how the Ninth Circuit or SCOTUS "would rule today." Rather, the court specifically relied on the supposedly binding effect of Newdow. Those are very different concepts.

Mr. Hoffman, in an earlier post you offer the following analysis:

I believe the Supreme Court based its ruling on a brief Newdow's ex-wife filed after cert was granted, but that she hadn't filed anything comparable with the Ninth Circuit. The situation is (roughly) analogous to one in which the petitioner dies after the Supremes grant cert.

I disagree. In the latter situation, the petitioner had standing, but lost it when he died. By contrast, I am not sure that Newdow ever had standing to pursue his claim. The fact that his wife did not point this out at an earlier stage of the proceedings does not mean that Newdow did not lack standing in the first instance. While the court should not necessarily be faulted for failing to recognize this, that does not also mean that the court "did not err." Jurisdictional questions are always before the court, and if not raised by the parties they ought be to addressed sua sponte. See 493 U.S. at 230-31 ("Although neither side raises the issue here, we are required to address the issue ...."). The Ninth Circuit's failure to address this issue was understandable, but that does not mean that it was not error.
9.14.2005 7:51pm
Kent Scheidegger (mail) (www):
In another case, the Ninth Circuit said, "that judgment is not binding precedent because the Supreme Court ultimately vacated it as unripe." Roe v. Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998), aff'd 526 U.S. 489.

I would think that ripeness and prudential standing are on the same plane here. In both cases, the Supreme Court ruled that the Ninth Circuit was wrong to have reached the merits.
9.14.2005 7:55pm
Hans Bader (mail):
Judge Karlton was wrong to treat the vacated Ninth Circuit decision invalidating the pledge as binding. Ironically, the Ninth Circuit itself has made this clear.

The Ninth Circuit itself has said that its own vacated decisions are not binding on either it or trial courts, even when they are vacated for reasons not going to the merits (such as mootness). Garcia v. Spun Steak Co. 998 F.2d 1480 (9th Cir. 1993).
9.14.2005 8:00pm
Steve:
Let's assume, for the sake of argument, that Newdow had lost on the merits in the Ninth Circuit. He then goes to the Supreme Court, which rules he never had standing in the first place, and declines to reach the merits on that basis.

In this scenario, it would seem fundamentally unfair for any court to give precedential weight to the Ninth Circuit's ruling on the merits. One of the conceptual bases for the doctrine of standing is that a litigant without an injury in fact may not litigate the case in a sufficiently vigorous manner. So now, as a future litigant, I am barred from bringing suit because some clown who never should have been allowed in the courthouse already sued and lost.

Given that, it would seem an odd result if the Ninth Circuit decision has precedential value only because it came out in favor of Newdow rather than against him.
9.14.2005 8:00pm
T. Gracchus (mail):
It looks to me that the District Court did it right (whatever the ultimate merits). The reversal was not on the substantive question. Reversal for lack of standing would not mormally affect other aspects of a ruling. The only decision in the Circuit (this I am assuming) says no pledge with the words. That aspect of the decision is still intact (because lack of standing has nothing to tell us about the legal question decided in the remainder of the decision and the higher court did not reach it). The Ninth's decision is fairly weak authority, but it is still authority. Also assuming a moderately strong precedent theory.
9.14.2005 8:03pm
Anderson (mail) (www):
VACATED or REVERSED?

Someone please show me where the 9th Cir. panel op was VACATED.

In Kent's Roe v. Anderson example, SCOTUS did indeed "vacate." The op vanished from the earth, becoming a wraith.

Now, if you want to argue the practical distinction, that's fine, but reversing isn't vacating.
9.14.2005 8:07pm
Joe Jackson:
Gracchus, could you explain this more fully, with any applicable citations that you are aware of?

Reversal for lack of standing would not mormally affect other aspects of a ruling.

It seems to me that this is simply incorrect. In its most basic sense, when a case is dismissed for lack of jurisdiction, it is as if the case never happened, irrespective of whether the court "vacates" the decision or "reverses" it.
9.14.2005 8:18pm
Edward A. Hoffman (mail):
Joe Jackson wrote:

I disagree. In the latter situation, the petitioner had standing, but lost it when he died. By contrast, I am not sure that Newdow ever had standing to pursue his claim.

This is why I said the situations are only roughly analogous. But I'm not sure I agree with your argument. Lack of standing is not the same thing as lack of jurisdiction. The federal courts had jurisdiction over the parties and over the subject matter; the Supreme Court simply held that a non-custodial parent can't overrule a custodial parent when deciding whether to sue. I think this is the right result and that the Court correctly decided the case on this ground instead of reaching the merits, but being wise does not make this result necessary. The decision was based on public policy more than anything else, and the Court could easily have gone the other way.

I agree that a jurisdictional challenge can indeed be raised at any time, but I don't know if the same is true of one based on lack of standing. Even if it is, I'm not sure the Court had enough information to say whether Newdow had standing a when he was in the Ninth Circuit; it may only have had information about the then-current state of affairs.

But even assuming that lack of standing and lack of jurisdiction are the same, the Supreme Court could have held that the Ninth Circuit lacked jurisdiction at the time of its decision and could have vacated its decision on that basis. The fact that it didn't is what distinguishes your hypothetical from what actually happened. Where the Supreme Court could have vacated a ruling but didn't, I don't think we can say that it did so implicitly unless there is no logical way the circuit court's ruling can survive. I've explained some logic by which it can, so I think the ruling remains in effect.
9.14.2005 8:20pm
Anderson (mail) (www):
Agree with Edward, and note again that a good district judge is going to err on the side of assuming that precedents remain in effect.
9.14.2005 8:27pm
david blue (mail) (www):
Isn't this totally the Supremes' fault? They SHOULD have vacated, right? Isn't that the usual course of action when concluding that the plaintiffs lacked standing to sue? If it isn't, it should be. If the plaintiffs lacked standing, they should never have been in court in the first place, so the lower courts should never have addressed the merits, so everyone should be writing on a blank slate. That's what vacatur is for.
9.14.2005 8:28pm
Adam Scales (mail):
Eugene,

Are you saying that SCOTUS committed a scrivener's error, or was at least careless? In other words, they must have intended to vacate, but didn't quite get around to saying so?
9.14.2005 8:31pm
Joe Jackson:
Edward, I am going to have to respectfully disagree. If the plaintiff lacked standing, the federal courts did not have jurisdiction over the parties (although they obviously would have jurisdiction over the subject matter).

The strangest thing about this whole case is that the problem could have been avoided by an only slightly different opinion. The court should have simply repeated the Newdow panel's reasoning. Judge Karlton could have even tossed in something like "Although reversed on other grounds, I find the reasoning of that decision persuasive for the following reasons ...."
9.14.2005 8:44pm
Anderson (mail) (www):
Joe, that's why I think that the district court didn't want to decide the issue, or else felt it best to err on the side of being bound, and so went with this argument.

I must retreat a bit: thus far, I can't find anything much to support my intuition that prudential standing isn't jurisdictional, though it's certainly not as clear as Article III standing. In Tenet v. Doe, the Court did distinguish prudential standing as a "threshold issue" that could be addressed before jurisdiction, but what that means is less than lucid to me.
9.14.2005 8:55pm
Edward A. Hoffman (mail):
My point is that lacking standing at the time the Supreme Court decided the case does not imply that Newdow never had standing to begin with. Parties who have standing when they file a complaint can lose it before the case is over, and that can happen at any point along the way -- including after a decision by the appellate court and before a decision by the Supreme Court.

If the Supremes only had facts about the mother's stance at a time after the Ninth Circuit handed down its decision, it could not simply presume that she had taken the same stance before that decision was written. In fact, it may be that she hadn't, in which case Newdow actually did have standing until very late in the game. The decision to dismiss the case thus means only that Newdow lacked standing before the Supreme Court and not that he lacked it when he was in the District or Circuit courts.
9.14.2005 9:01pm
frank cross (mail):
My recollection is that Newdow was found to lack prudential standing. This is not jurisdictional standing. Hence, I would think the 9th Circuit ruling would stand as precedent. It would hold just like any rev'd on other grounds precedent holds, I think.
9.14.2005 9:07pm
jnb:
Just one more personal anecdote - some time after I decided I was an athiest (sometime during 6th grade), I stopped saying the pledge. I simply was paying attention to what I was saying rather than daydreaming through it, and the words struck me. This was in a medium-sized school in Tennessee. I started standing silent through it, hands at my side (I figured what other people swore was none of my business). I was absolutely, ahem, subject to approbrium, from both students and faculty.I was paddled once for refusing, my mother made a huge stink and threatened to pull me, and the administration caved. I was beaten up by other students thereafter, though. After that, it calmed down, and I have never said it since. I'm proud to say that a few other students stopped saying the pledge after my little experience - it was only grammar school, and I wasn't to do anything other than attempt to stay true to myself, but it made me feel good that others thought as I did on a topic, and that I made it easier for them to act.

I may be idealizing the changing of people's relative willingness to sue over time, but somehow I imagine that would have ended up in court today. Or perhaps with me expelled over some zero tolerance nonsense.

In any case, reason #723 I left Tennessee and never looked back.
9.14.2005 9:22pm
Anderson (mail) (www):

My recollection is that Newdow was found to lack prudential standing. This is not jurisdictional standing.
I was with ya, Frank, but a quick Westlaw scan suggests that the Supremes consider prudential standing every bit as jurisdictional as Art. III standing. It's just that the former can be redefined by Congress, or by the courts in their "prudence."

Whether the cases cited by the judge support his position, I haven't looked yet.
9.14.2005 9:32pm
enosson:
I have a distinct recollection that when I was in third grade, which must have been the 1951-52 school year, and thus prior to the addtiion of "under God" to the pldege and in the midst of the McCarthy era, one of my classmates on at least one occassion refused to recite the pledge for some reason or another which I do not recall. The teacher denounced him as a "Communist" and we went on to other matters.
9.14.2005 10:10pm
frank cross (mail):
Anderson, that's remarkable to me, that prudential standing would be jurisdictional, but a quick scan shows me you're right.

A precedent's not a precedent without jurisdiction. But as some have noted, there might have been jurisdiction for the 9th Circuit but not the USSC, because of changed events. I didn't follow the facts of the case to know if this might be true.
9.14.2005 10:56pm
Jim Lindgren (mail):
Eugene,

The court had no jurisdiction to hear the first case. Its decision cannot be binding precedent.

Jim Lindgren
9.15.2005 12:17am
Cheburashka (mail):
I'm disagree.

If it were an Article III standing question, of course Jim would be right because the reversed decision was the decision not to vacate and vacateur was therefore the obligatory disposition on remand.

But it seems to me that the rule which permits courts to skip over precedential standing in order to reach a straightforward question of law on the merits necessarily implies that a reversal of a decision on prudential standing grounds does not mean that the original court lacked jurisdiction to reach its other holdings of law.

Its a disturbing result, but I think the trial court was right about it.

Then again, "binding" is a relative term when it comes to 9th Circuit precedents, so we'll see what happens.
9.15.2005 12:58am
Mike R (mail):
I understand the standing requirement to be one of the factors to ensure that a suit before the court is in fact a genuine case or controversy. If a plaintiff lacks standing, it is generally because the outcome of the suit doesn't affect him in a legally meaningful way. He therefore cannot be guarranteed to be a properly interested plaintiff who will properly present his side of the suit in a manner likely to produce a meaningful outcome (i.e. a well-thought holding) in our adversarial system.

Consequently, if a case is reversed because of standing, it seems that not only should the substantive holding lack precedential value, but also that the persuasive value of the case is lessened.
9.15.2005 1:59am
Xrlq (mail) (www):
Cheburashka, it's one thing for a court to have some flexibility in applying the prudential standing requirement. It's quite another to apply it, and then claim some sort of precedential value of a case that isn't even binding on the original parties. Is there a Latin phrase for "stare not decisis?" Or is this a new "stupor precedent" to go with Arlen Specter's super duper pooper scooper precedent?
9.15.2005 3:55am
Robert Schwartz (mail):
I think the District Court was trying to stick it to the 9th Circus and SCOTUS. His last footnote is a gem:

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 Court's recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nation's asserted religious heritage, and thus are permitted. ... 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. ...


Which I think means: "you made this mess, you sort it out."
9.15.2005 7:34am
Anderson (mail) (www):
I've spread more smoke than light on this standing issue, so let me draw attention to the cases cited by the judge, who relies on Steel Co. for the notion that a court may reach the merits before prudential standing.

The Steel Co. case is not lucid to me, but the Supremes do appear to've said that a court may address the merits before statutory standing. The 11th Cir., not a hotbed of liberalism, certainly took it that way; he cites their reading of Steel Co. as "suggesting that courts cannot pretermit Article III standing issues, but can pretermit prudential standing issues, in order to resolve cases where the merits are relatively easy." But then, the 11th also seems to've thought that prudential standing wasn't jurisdictional, and the Court seems to've assumed, or strongly implied, that it is.

(Cross-commented from Tacitus.org. "I often quote myself; it lends spice to my conversation." --G.B. Shaw.)
9.15.2005 9:31am
rbj:
Glad to see I'm not the only one confused by the standing issue. It seems to me, that the SCOTUS had thrown Newdow out of court entirely, thus voiding the Ninth Circuit's holding. And Karlton is right about this area of law now being a big mess.

FWIW, I never recited the pledge in school, just stood there with my hand over my heart. Not that I wasn't patriotic, I am, I just didn't like the whole exercise. I always did wonder if the words "under God" were unconstitutional. Most kids in my school, grade &high school, mumbled through it too. This was mid-state NY, 1970s. We then continued to stand for a "moment of silence."
9.15.2005 9:55am
Hans Bader (mail):
Judge Karlton's decision striking down the pledge seems even weaker than I previously thought, if the Ninth Circuit decision it relied upon (the earlier Newdow case) was reversed for lack of standing, rather than vacated, by the Supreme Court.

A reversed decision is obviously of no precedential value; by contrast, one could argue that the status of a vacated decision is less clear, since vacating a decision doesn't go to the merits.

But the Ninth Circuit held that even decisions vacated for mootness or lack of standing have no precedential value, in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).

So Judge Karlton was wrong to rely on the earlier Ninth Circuit Newdow decision striking down the pledge as binding precedent, regardless of whether it was reversed or just vacated, for lack of standing.
9.15.2005 9:56am
SethC (mail):
Legal nicities aside the 9th circuit did what it did and let's see how it comes out.
9.15.2005 10:58am
Joe Jackson:
But the Ninth Circuit held that even decisions vacated for mootness or lack of standing have no precedential value, in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).

Edward, does this change your opinion? "Vacated for mootness" seems on point with your analogy to the petitioner who dies before SCOTUS review.
9.15.2005 11:45am
Carol Anne:
Prof. Volokh writes (in part): I think the use of "under God" in the Pledge should be constitutional...

How would you feel if an Islamic group, in the 1950's, convinced the Congress to ass the phrase "...under Allah..." to the Pledge?

We are "...one nation, under a Constitution, indivisible...", and we should say so. To claim the nation is "under God" is an insult to the (admittedly small) fraction of our citizens who are agnostics (this smacks of "organized"), atheits, polytheists, pantheists, or without an opinion on the matter. The quality of a democracy is judged not by how it treats its majority, but how it treats its minorities. In this case, the Knights of Columbus have elevated their beliefs above the rule of law with the collussion of the Federal government, and I find that reprehensible.

At the beginning of every public meeting, here in my town, we begin with the Pledge of Allegiance. I steadfastly remain mute during those two words because I serve all our citizens, whether they monotheistic believers or not.

My own religios beliefs are irrelevant. It is my duty as a (very minor) public official to never disadvantage those who appear before our Commission. Claiming fealty to "God" in the opening moments of the meeting is akin to the "Ten Commandments" displays in Kentucky courthouses, which SCOTUS ruled had to be removed...for (essentially) the same reasons.

The Christian viewpoint in government is (currently) overpowering, and my view is not likely to prevail...and, yet, I would consider an approval of that phrase in the Pledge to be the Dred Scott of our generation.
9.15.2005 1:39pm
Joe Jackson:
I would consider an approval of that phrase in the Pledge to be the Dred Scott of our generation.

That's more than a bit hyperbolic, isn't it?
9.15.2005 2:25pm
Kent Scheidegger (mail) (www):
In answer to david blue, no I don't think the Supreme Court should have vacated rather than reversed, nor do I think that distinction has the importance Judge Karlton assigns to it. The Ninth Circuit's holding on standing was a prerequisite to its reaching the merits, not an independent holding. By reversing on standing, the Supreme Court yanked the foundation out from under the ruling on the merits.
9.15.2005 3:38pm
Edward A. Hoffman (mail):
Joe Jackson wrote:

But the Ninth Circuit held that even decisions vacated for mootness or lack of standing have no precedential value, in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).

Edward, does this change your opinion? "Vacated for mootness" seems on point with your analogy to the petitioner who dies before SCOTUS review.

No, because the Ninth Circuit's decision in Newdow was not vacated. All the Supreme Court did was dismiss the case from its own docket; it did not reverse, vacate or otherwise invalidate the Ninth Circuit's decision. This is why Eugene's question came up in the first place.

Many of the previous comments conflate the concepts of reversal and dismissal. The comment by Kent Scheidegger, for example, says "By reversing on standing, the Supreme Court yanked the foundation out from under the ruling on the merits." This analysis is wrong because the Supreme Court didn't reverse the decision in Newdow; it simply took the case off its own docket. Cases in which the Supremes reversed a circuit court tell us nothing about the status of Newdow, since in that case there was no reversal.

A reversal is an order from a higher court saying the lower court decided a case incorrectly. Dismissal is when a court decides that a case warrants no further action and should be brought to an end. An order of dismissal has no effect on prior orders in the same court or in prior courts; thus, if a litigant is sanctioned $1,000 for discovery abuse and his case is later dismissed, he still has to pay the sanction. Dismissal of a case by the Supreme Court has no effect on the circuit court's decision unless the Supremes specifically say otherwise.

The Supremes could have said Newdow lacked standing in the Ninth Circuit and that its decision was therefore wrong, but they didn't. The reason they didn't may be that they had no information about whether Newdow had standing at the time his Ninth Circuit case was decided. Alternatively, having decided to dismiss the case, the Supremes may simnply have let the issue go; after all, why would the Court issue a substantive decision in a case it believes should not be decided?

There may be other reasons why the Supremes did nothing about the Ninth Circuit decision, but their motives don't really matter. What matters is that they did not reverse or vacate that decision, and their dismissal was based on grounds which may not have applied in the Ninth Circuit at all.

My example of an appellant who dies while his case is pending before the Supreme Court is not covered by the language Joe quoted from Garcia v. Spun Steak. That case referred to decisions which had been vacated, which is not what happened in Newdow. It is also not what happened in my example, The death of the appellant only makes his Supreme Court case moot; it does not retroactively make the circuit court decision moot unless the appellant was already dead when that decision came down.
9.15.2005 4:32pm
Joe Jackson:
All the Supreme Court did was dismiss the case from its own docket; it did not reverse, vacate or otherwise invalidate the Ninth Circuit's decision.

Sorry Edward. You've been a good sport, but your theory simply does not comport with the plain text of the Supreme Court's decision.

"We conclude that Newdow lacks standing and therefore reverse the Court of Appeals' decision."

Elk Grove Unified School Dist. v. Newdow, 124 S.Ct. 2301, 2305 (2004).

"We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. The judgment of the Court of Appeals is reversed."

Id. at 2312.
9.15.2005 5:10pm
Edward A. Hoffman (mail):
Damn! You're right and I was wrong. I guess I did not recall the decision as accurately as I thought. This is what happens when I try to post while dealing with deadlines at work. Maybe I need to start researching my blog contributions as rigorously as I do when working for my clients.

My discussion of how reversals and dismissals differ is correct, but as Joe correctly points out I was mistakenly applying them to a case which really was reversed and not just dismissed.

My bad.
9.15.2005 5:42pm
jgshapiro (mail):
Edward:

The Supreme Court did not dismiss the writ of certiorari as improvidently granted ('digged'), which is what I believe it would have done if Newdow had lost standing between the appellate decision and the Supreme Court decision. It is what a minority of justices thought *should* have been done to the case brought by Johnnie Cochran when he, in fact, did die between the appellate decision to which he was a party and the Supreme Court decision in his case.

If the Court had digged the case, it would have left intact the injunction upheld by the 9th Circuit panel, which in turn upheld the ruling by the original district judge, because the Supreme Court would have taken no action.

Instead, the Supreme Court reversed the 9th circuit panel's decision and removed the injunction. So, if the reasoning behind the injunction survives, but the injunction itself does not, then notwithstanding the reversal, Newdow really won everything in his case (i.e., the precedent) except the injunction, which could be pursued by any new plaintiff that subsequently jumped on his bandwagon.
9.15.2005 5:57pm
jgshapiro (mail):
Karlton's decision would make sense only if the 9th Circuit's decision was decided (1) en banc; (2) in a circuit in which all of the members participate in an en banc panel; (3) none of the mebership of the circuit had changed between the first decision and the second; and (4) there was no new precedent from the Supreme Court on the issue in the interim. Then, you could argue that there is no point in assuming the 9th circuit would find differently because it would be the same people deciding upon the same facts and the same constitutional law.

However, the 9th circuit decision was decided only by a 3-judge panel; only 11 judges out of 28+ participate in an en banc panel; and there is no certainty the same people would be making the decision for the ninth circuit the 2nd time around.

Moreover, it is fairly clear from the decision in Newdow that the Supreme Court would still have reversed if they had found Newdow to have standing, so it is hard to argue that the constitutional law is the 'same,' especially if you are trying to guess how SCOTUS would rule the 2nd time around based on their previous statements.

Seems as though Karlton was trying to reach a decision he favored without taking heat for favoring it (by blaming the ninth circuit).
9.15.2005 6:01pm