from Howard Bashman. Technical but very interesting analysis of what precedential effect the substantive part of the Ninth Circuit decision -- which was reversed on procedural grounds -- should have.

a (mail):
so is it obvious to everyone else here that the taking out of the "under god" mention in the PAO is generally part of the organic path a society takes towards more progressive policies?
9.15.2005 3:15pm
Bob Woolley (mail):
Bashman considers two types of multi-part decisions reversed by a higher court: the more common situation in which the lower court ruling has two or more independent decisions, and the less common one like Newdow, in which one decision (standing) necessarily comes before another (merits).

I'm not sure it's that simple. A good number of cases have just one main component, but it is composed of several interdependent sub-components, such as a multi-part test. For example, sexual harassment--for simplicity's sake, let's boil it down to just two parts, in that the alleged conduct must be both subjectively unwelcome and objectively of some threshold severity and/or duration.

Now suppose that an intermediate appellate court finds that both parts of this test have been met, and upholds the lower court's judgment for the plaintiff. In the process, it announces some new, more comprehensive means of ascertaining the second (objective) component, because previously used means can't be applied to the facts of the case.

Now the supreme court (federal or state) takes the case and reverses on the first part of the ruling (subjective welcomeness). It then declines to review the second part of the intermediate appellate decision because there is no need to reach that question. The judgment is reversed.

Now does the intermediate court's new test for determining objective severity stand as precedent? The supreme court is saying, sub silentio, that the intermediate court need not have reached the objective question if it had correctly determined the subjective question--just as the 9th circuit need not have reached the merits if it had correctly determined the standing question. But the two questions are not truly independent like Bashman's math and colors hypothetical, because a negative answer on either one means, ultimately, judgment for the defendant. Because the two questions are not truly independent, this is not a reversal in part.

And suppose that the supreme court didn't just bypass the objective part from lack of need to reach it, but had granted cert only on the subjective question, so that the objective portion wasn't even before it. Would that affect whether or not the intermediate court's new ruling on the objective component should be recognized as precedential?

I don't pretend to have definitive answers. But I don't readily accept that appellate cases break down into the dichotomy that Bashman seems to be using.
9.15.2005 3:32pm
The US Supreme Court merely "reversed" the decision of the court of appeals in Newdow. But the Supreme Court "vacates" the decision in other cases. When a judgment is vacated, it does not legally exist. But reversal just says it was wrong on at least one (decisive) point.

If the Supreme Court wanted to "vacate" the court of appeals decision, couldn't they have done so? If they just "reversed" the decision on the one ground listed, didn't that leave the rest of the opinion in tact?
9.15.2005 4:15pm
Anderson (mail) (www):
I'm persuaded by Bashman &Volokh until I see a more persuasive argument, but I have been annoyed with the common notion that the judge strained the law in order to come out against the "under God" part of the pledge.

Had he wished to do so, he could've simply reprinted the panel's merits discussion and said, "I agree."

Rather, the judge was straining to avoid reaching the merits, presumably for the reasons stated in his long final footnote:
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. As last term's 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 [sic] 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.
The judge seems to telegraph his own dislike for the "under God" phrase, but note that he refused to strike it from the pledge, or to enjoin its being recited at school board meetings. He simply deferred to the panel's holding that schoolchildren shouldn't be forced to publicly choose between saying it or remaining silent, which, kindly remember, is not a ridiculous application of Lee v. Weisman.
9.15.2005 5:16pm
Bob Davis (mail) (www):
There's nothing there in the decision - it's bad stuff. Clearly the Founders allowed God in the classroom, as there were prayers in schools literally for centuries. "Under God" is the least they should allow. Intelligent Design too, though I agree that maybe creationism goes too far for a science classroom.

a modest experiment
9.15.2005 5:28pm
jgshapiro (mail):

You are ignoring a third possibility, that the judge wanted to strike the pledge but also wanted to avoid the national condemnation that would accompany the act. Yes, I know he has life tenure and as a senior judge is probably too old to be promoted to the court of appeal, but still, this decision was bound to be picked up by every media outlet in the country.

By blaming the ninth circuit for the reasoning (rather than reprinting it), he can have his cake and avoid the consequences of eating it. After all, why not otherwise reprint the reasoning, especially if he agreed with it and it was questionable as to whether the precedent was still valid?

Either he disagreed (which the last paragraph refutes) or he agreed but did not want the blame. Looks like the latter.
9.16.2005 5:51am
It seems that the problem arises from the doctrine of prudential standing. Since that is not an article III issue, it allows the area where a case that shouldn't exist, nonetheless does. Bashman's right about the interpretation of the cases on which the Judge relies, and treating the decision as vacated better fits with the policy rationale behind prudential standing. But, it's not automatically so, and the 9th Circuit should clean this up on the inevitable appeal.

Even were the pledge not circuit law, it still makes sense for the trial judge to treat the vacated (or whatever) opinion as persuasive authority. Concerns of justice for the parties should lead the court to make the best guess as to what the appeals court would do -- and the Newdow opinion gives indication about how the circuit interprets the same policy concerns that would apply to the case at bar.

Of course, the 9th Circuit is so large that not even an en banc panel necessarily guarantees the opinion of a majority of circuit judges. Fact is, the judge could probably write gibberish because both sides have probably already written their certiorari petitions.
9.17.2005 9:39pm