New Pledge of Allegiance Case,
and precential effect of Ninth Cir cuit's earlier Newdow decision
David E. Guinn
davideguinn at hotmail.com
Thu Sep 15 08:50:31 PDT 2005
It seems to me the thing that distinguishes a holding from an advisory
opinion is that the holding results from a competently litigated case. By
reversing the judgment on the grounds that Newdown lacked standing, the SC
was also asserting that the case was not competently litigated -- i.e.
litigated by someone with the interest and standing appropriate to serve as
the responsible advocate or adversary for the case.
David
----- Original Message -----
From: <marty.lederman at comcast.net>
To: <jsbuck at post.harvard.edu>; "Law & Religion issues for Law Academics"
<religionlaw at lists.ucla.edu>
Sent: Thursday, September 15, 2005 10:18 AM
Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth
Cir cuit's earlier Newdow decision
> 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
>> > >
>> > > _______________________________________________
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>> >
>> >------------------------------------------------------------------------------
>> >
>> >
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