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

[Mark Tushnet]

Simply on the predictive issue:  (1) Does the Ninth Circuit have a 
"related cases" rule, and (2) if so, would the appeal of this 
decision fall within the rule?

----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Date: Wednesday, September 14, 2005 11:12 pm
Subject: RE: New Pledge of Allegiance Case, and precential effect 
of Ninth	Cir cuit's earlier Newdow decision

> Let me recommend Howard Bashman's post on the precedent 
issue at How
> Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 
> 8:01 pm
> 9/14/05 post.) He presents arguments for the following 
conclusion: 
> 
> "In holding that the Ninth Circuit's Pledge of Allegiance ruling, 
> even after
> being reversed by the U.S. Supreme Court, requires the U.S. 
> District Court
> for the Eastern District of California to hold that recitation of 
> the Pledge
> in public schools is unconstitutional, today's ruling is really, 
> reallywrong."
> 
> Mark Scarberry
> Pepperdine
> 
> -----Original Message-----
> From: Brad Pardee
> To: Law & Religion issues for Law Academics
> Sent: 9/14/2005 8:00 PM
> Subject: Re: New Pledge of Allegiance Case, and precential 
effect 
> of Ninth
> Cir cuit's earlier Newdow decision
> 
> I appreciate Art's clarification of what he meant.  He's correct 
> that I
> understood his saying the judge "wanted to do the right thing" as
> meaning that judge was acting based on his own understanding 
of right
> and wrong as opposed to what the law reads.
> 
> I would think, though, that it would not speak well of him if he had
> felt a need to issue his decision in a certain way out of his 
concerns
> about the unpopularity of his decision.  In that I am not a lawyer, 
> muchless a judge, perhaps I'm holding onto pollyanish 
expectations 
> of the
> judicial branch, but it seems to me that accepting the mantle of a 
> judgerequires enough moral courage to do what your job 
requires of 
> you,regardless of popular opinion.  Again, not being a lawyer, I 
> don't feel
> I'm in a position to accurately understand his motivations based 
on 
> thequoted section of the opinion, so I will look forward to reading 
> andlearning from what I read here from the learned assemblage.
> 
> Brad
> 
> 
> ----- Original Message ----- 
> From: ArtSpitzer at aol.com <')" >ArtSpitzer at aol.com>  
> To: religionlaw at lists.ucla.edu <')" >religionlaw at lists.ucla.edu>  
> Sent: Wednesday, September 14, 2005 8:57 PM
> Subject: Re: New Pledge of Allegiance Case,and precential 
effect of
> Ninth Cir cuit's earlier Newdow decision
> 
> Brad assumes that when I said the judge "wanted to do the right 
> thing,"I meant the politically right thing or the the right thing 
> by his
> personal lights.  That's not at all what I meant, and I would agree 
> withhim that a judge is not supposed to follow such a course.  
> 
> What I meant was that the judge may have wanted to do the 
legally 
> rightthing -- as I believe he did -- but may have felt the need to 
> seek the
> shelter of the 9th Circuit's previous decision to reduce the heat 
that
> would (and surely will) come his way because he did a wildly 
unpopular
> thing.
> 
> However, now that I've seen the judge's candid footnote, I agree 
with
> Anthony Picarello that he seems to have explained his own 
reasons 
> prettywell.
> 
> Art Spitzer 
> 
> <<ATT59383.txt>> 
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