New Pledge of Allegiance Case -- What Does "Binding" Mean, Anyway?
marty.lederman at comcast.net
Thu Sep 15 21:45:29 PDT 2005
1. My understanding (although this could be mistaken) is that there was a case or controversy in Newdow -- the only thing missing was "prudential" standing.
2. In any event, even if it were later determined that there had been no case or controversy, I don't see why it would follow that "the entire decision [on the merits] is dicta": The merits decision was fully briefed and argued (by "competent" parties), and, more importantly, carefully considered by the panel. Thus, the reasons that classic dicta is deemed unreliable -- and hence nonbinding -- are not present. (Indeed, clear holdings of a panel are often thought to be "binding" even if the issue was not briefed at all.)
3. It is often the case that a holding not necessary to resolve the controversy is deemed "binding" on lower courts and future panels -- for instance, whenever there are alternative grounds for decision, either one of which would be sufficient to support the judgment. So that can't be the test of "bindingness," either.
4. In any case, when the first panel reached the merits in Newdow, it did so on the assumption that the resolution of the merits was necessary to resolve the case or controversy. To be sure, it may have later turned out that that was not true -- because the case could have been resolved on prudential standing grounds -- but that's the case whenever a decision is reversed "on other grounds," and in most such cases the holding that was left undisturbed is treated as binding in later cases, if I'm not mistaken (the district court cites the CTA9 decision in Durning to this effect -- but I haven't researched the question).
5. Returning back to the broader question, Stuart writes that a court of appeals decision "is binding on a district court because lower courts have to follow higher courts." Well, the lower court "followed" the higher court here, so that's not a problem. I'm increasingly, wondering, however, whether any of this discussion (my own included) makes any sense at all. Here's a brief explanation why -- but I'd welcome the input of fedcourts experts in case I'm way off-base here.
Contrary to common understanding (and Stuart's first sentence), a trial court in the Eastern District of California, such as this one, does not "have to" follow the decisions of most "higher courts." It doesn't deem "binding" the decisions of the Court of Appeals for the Eighth Circuit, or of the California Supreme Court, for instance. It generally treats as "binding" the decisions of the Ninth Circuit, but not, I think, because there's some legal or constitutional obligation to do so -- contra Rodriguez de Quijas. The reason the district court in the EDCal treats the decisions of the CTA9 as "binding" is that its judgment may, of course, be appealed to the CTA9, and a new panel of the CTA9 itself will be required -- by internal CTA9 rules -- to follow the previous CTA9 decision. Therefore, as a practical matter, it does not make much sense for the trial court to issue a decision in conflict with the holding of a CTA9 panel, because such a decision is very likely not to be sustained on appeal -- by virtue of the court of appeals' own internal stare decisis rules. Very likely, but not inevitable. The district court might predict, or hope, that the Ninth Circuit will reverse the prior ruling en banc, or that the Supreme Court will take the new case and reverse the prior CTA9 holding -- in which case perhaps it makes sense for the district court not to follow the "governing" holding (cf. Gobitis/Barnette). It would be a nightmare if district courts took a flyer on such a possibility all the time -- and courts of appeals would not look kindly on the practice -- and so it rarely happens. But I'm not sure there's any legal impediment to a lower court doing so.
If I'm right about this, the only reason -- and it's a pragmatic one, I think -- for a district court in the EDCal to treat the Newdow "holding" of the CTA9 panel as "binding" is if the next CTA9 panel would itself be bound, under CTA9 rules, to follow the earlier Newdow decision. For the reasons I've been trying to articulate in the paragraphs above and in my prior posts, I think the CTA9 ought to treat its prior Newdow opinion as "binding" on future panels, because that holding is not materially distinguishable from other CTA9 panel holdings -- e.g., those that are not appealed, those that are reversed on other grounds, etc. -- that are deemed binding on the next CTA9 panel. It was reached with the same care after complete briefing and argument; not reversed or called into question by the SCOTUS; etc. But "ought" isn't "is." The court of appeals could adopt a stare decisis rule that draws distinctions among its prior holdings that doesn'I appear to make any sense to me. I don't have the faintest idea whether, under internal CTA9 rules and/or practice, the Newdow decision will be binding on future CTA9 panels. If it is, then the district court probably should have followed it. If not, then there was no need for the district court to treat it as "binding." The answer to the question, however, depends entirely on the vagaries of the court of appeals' internal rules for binding future panels -- it can't be discerned from first principles, or from the Constitution.
----- Original Message -----
From: "Stuart BUCK" <stuartbuck at msn.com>
To: <religionlaw at lists.ucla.edu>
Sent: Thursday, September 15, 2005 12:08 PM
Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
> 1. A court of appeals decision is binding on a district court because lower
> courts have to follow higher courts. If there's any discretion as to the
> scope of that rule, the discretion would lie not with the lower courts but
> somewhere else (i.e., the appeals court's own rules as to precedent, or
> possibly Congress (see Michael Stokes Paulsen's interesting article in YLJ
> on similar questions)). Pragmatically, of course, if a district court
> decides to ignore the court of appeals' prior decisions or to construe those
> decisions narrowly or to manipulate the line between holdings and dicta, it
> may or may not get away with it.
> But speaking of dicta, the reason that dicta is not binding is because it
> involves reasoning that wasn't necessary to resolve the actual
> case/controversy between the parties. So for the same reason that dicta is
> not binding, a court of appeals' decision is not binding where there is no
> case or controversy. Put another way, if the case/controversy disappears,
> the entire decision is dicta.
> 2. A panel's decision is binding on future panels because of the circuit's
> own rules to that effect (all circuits have such a rule, I believe). The
> very reason for this rule is that, as we all know, a panel's disposition of
> a particular issue might be different depending on who is randomly selected
> to be on that panel. To avoid the spectre of inconsistent rules of law
> governing a single circuit, subsequent panels are supposed to follow the
> first panel to resolve a particular issue. (If you could always count on
> different panels to resolve the same issue in the same way, you wouldn't
> need a rule of precedent in the first place.)
> Again, where the previous panel's decision is entirely dicta, I see no
> reason that subsequent panels would be bound by it.
>>From: marty.lederman at comcast.net
>>To: jsbuck at post.harvard.edu,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: Thu, 15 Sep 2005 15:18:05 +0000
>>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
>> > 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
>> > >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
>> > >argument, carefully considers the merits question in case A and holds
>> > >The judgment in case A is not binding on lower courts and future panels
>> > >dealing with different parties. Nor does the judgment have res
>> > >effect in such future cases. The holding X, however, is deemed
>> > >in future cases, precisely because the first panel came to conclusion X
>> > >after full briefing, argument and consideration (assuming, of course,
>> > >the holding was not contradicted (reversed) by the court sitting en
>> > >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)
>> > >all -- either becauise the plaintiff didn't have standing, or because
>> > >court didn't have jurisdiction, or because the case wasn't ripe, etc.
>> > >effect of this reversal, or vacatur, might be that the judgment no
>> > >has any operative effect. But why should the precedential effect of
>> > >holding change? After all, it was the court's reasoning -- not its
>> > >judgment -- that "bound" lower courts, and other panels, in future
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