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

[Marty Lederman]

Severl folks in this thread are writing as if there is some inherent, or consistent, "right" answer to the question of whether the CTA9 merits decision in Newdow is "binding" on district courts "within" that circuit -- or, presumably, on future Ninth Circuit panels -- and whether it makes a difference that the panel decision was "reversed" (on prudential standing grounds), rather than "vacated."  

But if I'm not mistaken, whether the prior decision is "binding" in a future case -- two different questions, really:  whether a "lower" court in some sense "must" follow it, and whether it triggers the rules of stare decisis for future panels of the same appellate court -- is solely a function of whatever rules of precedent the Court of Appeals chooses to implement.  These would be analogous to the "rules" the U.S. Supreme Court has developed to govern (i) when lower courts must follow various dispositions of the SCOTUS (holdings declared in majority or plurality opinions; affirmances by an equally divided Court; cert. denials; etc.) and (ii) when the SCOTUS itself should apply stare decisis.  (I'm putting aside here the question whether "higher" courts in fact have the constitutional power to insist that "lower" federal courts follow their precedents at all -- the famous counterexample is the district court's (ultimately vindicated) refusal to follow Gobitis.  There are those who have argued that the basic Agostini/Rodriguez de Quijas rule -- that lower courts cannot anticipate the SCOTUS's overruling of "governing" precedent -- is illegitimate -- but I'm assuming here that it's not.) 

I don't know what the Ninth Circuit's rules are in this respect -- but frankly, I don't see any good reason to treat a prior merits opinion that has been "reversed" on prudential standing grounds any differently for purposes of "binding" precedent than if the same opinion had not been appealed (or cert. had been denied).  Are Alan and David "unconvinced" that the Court of Appeals has such a rule (which may well be so -- I don't know), or is it their view that the CTA9 cannot have such a rule?

Having said all that, I do agree that the question the district court ought to ask is whether, under CTA9 rules, it is "bound" by a circuit-wide rule of precedent.  If it's not bound, then the court's job is not to "predict" what the next CTA9 panel would do, but is instead to attempt to discern how the case should be decided based on the precedents -- of the SCOTUS and the CTA9 -- that are "binding."   


----- Original Message ----- 
From: "David Cruz" <dcruz at law.usc.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Wednesday, September 14, 2005 4:46 PM
Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision


> 
> I too am unconvinced.  If the Court reverses a lower court, it says it was
> wrong for the lower court to have reached the merits.  Treating a decision
> that wrongly reached the merits as BINDING seems fishy, at best.  Guess
> I'll have to look up the lower court law on prudential reversals.
> 
> David B. Cruz
> Professor of Law
> University of Southern California Law School
> Los Angeles, CA 90089-0071
> U.S.A.
> 
> On Wed, 14 Sep 2005, A.E. Brownstein wrote:
> 
>> The story is correct. The Supreme Court did not vacate the Ninth Circuit's
>> decision in Newdow. It reversed it. The District Judge in the new case
>> argues that a reversal on prudential standing grounds does not disturb the
>> merits of the Ninth Circuit decision as precedent. "In sum, because a court
>> may reach the merits despite a lack of prudential standing, it follows that
>> where an opinion is reversed on prudential standing grounds, the remaining
>> portion of the circuit court's decision binds the district courts below."
>>
>> I am unconvinced.
>>
>> Alan Brownstein
>> UC Davis
> 
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20050914/dea1b64b/attachment.html