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

[David Cruz]

On Wed, 14 Sep 2005, Marty Lederman wrote:

> Why is it inconsistent?  Assume a court of appeals that, after briefing
> and argument, carefully considers the merits question in case A and
> holds X.  The judgment in case A is not binding on lower courts and
> future panels dealing with different parties.  Nor does the judgment
> have res judicata effect in such future cases.  The holding X, however,
> is deemed "binding" in future cases, precisely because the first panel
> came to conclusion X after full briefing, argument and consideration
> (assuming, of course, that the holding was not contradicted (reversed)
> by the court sitting en banc or by a higher court).
>
> Now let's say a higher court subsequently determines that the court of
> appeals should never have considered case A (or the "merits" questions)
> at all -- either becauise the plaintiff didn't have standing, or because
> the court didn't have jurisdiction, or because the case wasn't ripe,
> etc.  The effect of this reversal, or vacatur, might be that the
> judgment no longer has any operative effect.  But why should the
> precedential effect of the holding change?  After all, it was the
> court's reasoning -- not its judgment -- that "bound" lower courts, and
> other panels, in future cases.

I think the argument would be that the later determination about standing
means that the first court of appeals decision NEVER SHOULD HAVE rendered
a *holding* at all.  It improperly exercised the judicial power of the
United States.  That could support an argument that the reasoning of those
randomly selected three (or two, as it turns out) judges should not be
binding in subsequent proper exercises of the judicial power in the Ninth
Circuit.

That doesn't necessarily mean that it would be *unconstitutional* for the
Ninth Circuit to adopt the district court's approach to stare decisis.
But from the lack of citation, I'm assuming the Ninth Circuit has not so
held.  And it's not intuitively clear to me that the district court's
approach is one that SHOULD be adopted, although I countenance that
possibility -- thus perhaps distinguishing myself from Tom Goldstein, who
on NPR today said that the district court just didn't understand that it
wasn't bound by [Newdow III] since the Supreme Court had reversed that
case.  Of course, since he was doing commentary on the Roberts hearing, I
assume he had read neither the court's opinion nor our illuminating
discussion on this learned listserv.  ;^)


David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.