New Pledge of Allegiance Case,
and precential effect of Ninth Cir cuit's earlier Newdow decision
marty.lederman at comcast.net
marty.lederman at comcast.net
Thu Sep 15 08:18:05 PDT 2005
Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, "binding" on district courts and future panels, in the first place?
>
> The quick answer that comes to mind: Because courts have no authority to
> issue "holdings" apart from "judgments" in the first place. That is,
> federal courts can't issue advisory opinions apart from a genuine case or
> controversy under Article III.
>
>
>
> >From: "Marty Lederman" <marty.lederman at comcast.net>
> >Reply-To: Law & Religion issues for Law Academics
> ><religionlaw at lists.ucla.edu>
> >To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
> >Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth
> >Cir cuit's earlier Newdow decision
> >Date: Wed, 14 Sep 2005 20:43:34 -0400
> >
> >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.
> >
> >
> > ----- Original Message -----
> > From: A.E. Brownstein
> > To: Law & Religion issues for Law Academics
> > Sent: Wednesday, September 14, 2005 7:50 PM
> > Subject: Re: New Pledge of Allegiance Case, and precential effect of
> >Ninth Cir cuit's earlier Newdow decision
> >
> >
> > The District Court opinion did not identify a Ninth Circuit rule of
> >precedent on this issue and seemed to be discussing the question as a
> >matter of general law. I don't know whether the kind of rule Marty
> >describes exists here.
> >
> > I think Justice Steven's opinion in Newdow reads very much like the
> >Court does not think the resolution of this case by the Ninth Circuit on
> >the merits was appropriate. Stevens writes, ""In our view, it is improper
> >for the federal courts to entertain a claim by a plaintiff whose standing
> >to sue is founded on family law . . . . When hard questions of domestic
> >relations are sure to affect the outcome, the prudent course is for the
> >federal court to stay its hand rather than to reach out to resolve a
> >weighty question of federal constitutional law."
> >
> > That language seems to me to be inconsistent with the idea that the
> >Ninth Circuit's decision should still be considered binding law in the
> >Circuit.
> >
> > Alan Brownstein
> >
> >
> >
> >
> > At 07:12 PM 9/14/2005 -0400, you wrote:
> >
> > 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.
> > >
> > _______________________________________________
> > 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.
> >
> >
> >------------------------------------------------------------------------------
> >
> >
> > _______________________________________________
> > 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.
>
>
> >_______________________________________________
> >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.
>
> _________________________________________________________________
> Express yourself instantly with MSN Messenger! Download today - it's FREE!
> http://messenger.msn.click-url.com/go/onm00200471ave/direct/01/
>
> _______________________________________________
> 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.
More information about the Religionlaw
mailing list