Effect of the Newdow case on the precedential value of the
Ninth Circuit decision
VOLOKH at law.ucla.edu
Tue Jun 15 13:46:12 PDT 2004
I think Howard is quite right as a matter of principle; I was
wondering whether there this was support by the Ninth Circuit (and
perhaps other circuit) caselaw. But likely the argument is indeed
powerful enough that the Ninth Circuit will see its merits in any event.
> -----Original Message-----
> From: hjbashman at comcast.net [mailto:hjbashman at comcast.net]
> Sent: Monday, June 14, 2004 9:42 PM
> To: Volokh, Eugene
> Cc: Samuel Bagenstos; Mark Tushnet; Sisk, Gregory C.; conlawprof
> Subject: RE: Effect of the Newdow case on the precedential
> value of the Ninth Circuit decision
> Eugene is of course correct that the Supreme Court neither
> "vacated" the Ninth Circuit's judgment nor "reversed on other
> grounds." Rather, the Supreme Court's majority holds that
> the Ninth Circuit's ruling on the merits is "reversed"
> because Newdow lacked standing and therefore federal courts
> should not have entertained and decided the merits of his lawsuit.
> Two points follow from the Supreme Court's "reversal."
> First, the basis for the reversal was the majority's
> conclusion that the lower federal courts should not have
> addressed the merits of Newdow's claim. The only way to
> repair the lower courts' error in that respect is to treat
> those rulings as though they had never issued.
> Second, the majority's "reversal" allowed the remaining three
> Justices to issue opinions concurring in the judgment, even
> though they believed that Newdow possessed standing. If the
> Supreme Court's mandate allowed the Ninth Circuit's ruling to
> retain precedential effect, then surely the three Justices
> (the Chief, O'Connor, and Thomas) who disavowed the decision
> on standing grounds would have dissented given their
> expressed views that the Ninth Circuit's ruling on the merits
> was wrong.
> A more common sense point is that if the Ninth Circuit's
> ruling on the merits retains precedential effect
> notwithstanding today's Supreme Court decision, then it would
> remain unconstitutional to recite the Pledge within the Ninth
> Circuit. If that were so, we would have heard quite an
> outcry already. Cases in which the plaintiff lacked standing
> couldn't be reviewed by the Supreme Court, but their outcomes
> would remain binding even if a majority of the Supreme Court
> might disagree with them? That seems quite preposterous.
> The more interesting question for me -- an admitted appellate
> geek -- is why the majority denominated its result as a
> simple "reversal." What the Court should have done is state
> that the Ninth Circuit's ruling with respect to Newdow's
> standing is reversed and the Ninth Circuit's judgment on the
> merits is vacated with instructions to dismiss. I wonder
> whether that more correct description of the outcome, had the
> majority employed it, would have caused the other three
> Justices to call their opinions something other than
> concurrences in the judgment.
> Law Offices of Howard J. Bashman
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> > My intuition was the same as Sam's -- but it turns out there's some
> > caselaw
> > (such as the case I cited) that suggest that while
> *vacated* decisions are
> > treated this way, decisions that are *reversed on other
> grounds* do maintain
> > their precedential value. And the Newdow bottom line was
> to reverse, not to
> > vacate. Or am I missing something?
> > Eugene
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