New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision

[Steven Jamar]

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.

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 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:stevenjamar at gmail.com
>>
>> 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
>>
>>
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"There are obviously two educations.  One should teach us how to make  
a living and the other how to live."

James Truslow Adams


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