Pledge recital: invalid once more
(This is another in a continuing series of reports on the impact of Supreme Court rulings on later lower court cases.)
A federal judge in Sacramento — in a ruling that got immediate, critical mention at the Senate Judiciary Committee hearings in Washington on the Chief Justice nomination — on Wednesday ruled that it violates the rights of public school children in three California districts for students to recite the Pledge of Allegiance every day — so long as the phrase “under God” is included. The judge did not strike down the Pledge with that phrase in it, but merely barred its recital in the three districts.
Senior U.S. District Judge Lawrence K. Karlton, who has been on the federal bench for 26 years since being appointed by President Jimmy Carter, ruled that he had no choice but to follow a Ninth Circuit decision in February 2003 that the recital was unconstitutional. That decision is still binding, the judge concluded, even though the Supreme Court reversed that ruling on procedural grounds in its 5-3 ruling in Elk Grove School District v. Newdow in June 2004.
The new ruling came in a case involving atheist parents who object to having their children hear a daily recital of the phrase with the reference to God included. This was a new lawsuit, initiated by, among others, Sacramento atheist Michael A. Newdow, who figured in the case that went to the Supreme Court. But Judge Karlton found — as the Supreme Court did in the first case — that Newdow himself had no right to bring his constitutional challenge. However, other parents did, according to the judge.
When the Supreme Court issued its ruling in the Newdow case, it declined to rule on the constitutionality of public school pupils’ recital of the Pledge. Instead, it found that Michael Newdow lacked “standing” to sue to challenge that practice.
But Judge Karlton ruled that the type of “standing” that the Supreme Court had found lacking in the first case did not undermine the substance of the Ninth Circuit’s ruling against the recital. Newdow’s lack of standing, the judge said, did not deprive the courts of jurisdiction entirely to hear his case, and thus the Ninth Circuit decision remains a precedent that is controlling on the constitutional point for all courts in that Circuit.
The Becket Fund, a religious advocacy group, promised an immediate appeal of the case to the Ninth Circuit.
Republican senators on the Senate Judiciary Committee inserted in their comments and questions references to Judge Karlton’s decision, using it to illustrate their abiding complaint about “activist” courts. Some of those references were inaccurate, suggesting that the judge had struck down the Pledge itself, or that the ruling had come from the Ninth Circuit.
In its 2003 decision, the Ninth Circuit had found that recital of the Pledge as written in public school classrooms had a “coercive” effect on children from families with atheistic beliefs. That is the outcome that Judge Karlton applied anew Wednesday.
The American Center for Law and Justice, a conservative legal advocacy group, said the new ruling “underscores the importance of the federal judiciary and who serves on the Supreme Court of the United States.”
Howard Bashman has an interesting post on the decision.
Judge Karlton’s claim that he is bound by the prior Ninth Circuit decision on the merits is dubious, to put it mildly.
In another case, the Ninth Circuit said, “that judgment is not binding precedent because the Supreme Court ultimately vacated it as unripe.” Roe v. Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998), aff’d 526 U.S. 489.
I would think that ripeness and prudential standing are on the same plane here. In both cases, the Supreme Court ruled that the Ninth Circuit was wrong to have reached the merits. The fact that the Supreme Court “reversed” rather than “vacated” in Newdow does not seem to me to have as much importance as Judge Karlton assigns to it.
Judge Karlton does not discuss Roe. Nor does he discuss the Munsingwear rule, where a Supreme Court decision that a case is moot by the time it reaches the Supreme Court results in vacatur and wiping out the lower court decision as precedent. That lack of discussion seems strange in a case of great national interest.
Here is a link to the opinion:
http://207.41.18.73/caed/DOCUMENTS/Opinions/Karlton/05-17.pdf
Comment by Kent Scheidegger — September 14, 2005 @ 8:27 pm
Kent,
Yet logically might not the 9th Circuit achieve the same result using the same logic and reasoning. The judge seems to be citing the circuit decision merely to provide cover for his own decision, as claiming that he merely agreed with the reasoning of the 9th Circuit would be politically and possibly personally dangerous.
Comment by akatsuki — September 15, 2005 @ 9:01 am
Kent Scheidegger is right.
The Ninth Circuit itself has generally said that an earlier Ninth Circuit decision lacks precedential weight even if it was merely vacated (as opposed to reversed). See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993).
(Of course, the most liberal judges on the Ninth Circuit dissented against that principle in the Spun Steak case, seeking rehearing en banc, and since Ninth Circuit panels sometimes ignore each other’s decisions (especially when the panels have different ideologies), there is no guarantee that a Ninth Circuit panel would apply that principle today).
So Judge Karlton’s decision invalidating the pledge of allegiance is questionable insofar as it relied on the Ninth Circuit’s earlier Newdow decision striking down the pledge as precedent, even though the Supreme Court later found that Newdow lacked standing.
Comment by Hans Bader — September 15, 2005 @ 9:08 am
There’s an interesting thread on the vacated vs. reversed topic over at Volokh. My take: the Supremes screwed up - they should have vacated rather than reversed. Having reversed, they created the possibility of a trial court judge doing exactly what was done here, and it’s far from obvious to me that the judge was wrong.
Comment by david blue — September 15, 2005 @ 9:34 am
Akatsuki is correct that the Ninth Circuit could simply adopt its prior reasoning as persuasive even though not binding (as Judge Karlton could have, but did not), but it will not necessarily do so.
The first question is whether this case will be assigned to the same panel, or whether a new panel will be drawn. Since this is a new lawsuit with new plaintiffs (who actually have standing), it seems to me it should be treated as a new case, and a new panel should be drawn at random. In the Ninth Circuit, a panel typically keeps a case when the same litigation in substance comes back in technically new forms, as often happens in death penalty cases, but this one really is a dispute between different parties, at least on one side.
The first question a new panel would face is whether the prior decision is binding precedent. Panels are supposed to treat as binding the precedents of other panels, which can only be overruled en banc. Hans has a point that the rule is not always observed, but it is the rule. For the reasons Hans, I, Howard Bashman at How Appealing, and a host of others have already stated, I think the prior decision is not binding.
However the panel decides, there will surely be a call for rehearing en banc. Three new judges have been confirmed since the last case, and the center of gravity on the court has surely shifted closer to the middle of the road than it was before.
Comment by Kent Scheidegger — September 15, 2005 @ 1:34 pm
In August, the 4th Circuit ruled (in Myers v. Loudoun) that it’s OK to require public schools to lead students in the Pledge of Allegiance.
But there’s the 2002 decision by the 9th Circuit (Newdow v. Elk Grove) that it’s not OK.
Could the Supreme Court decide (w/o petition) to settle this matter, given that there’s a conflict between the rulings from two Circuit courts?
Is that possible?
Comment by LyricalReckoner — September 16, 2005 @ 7:49 pm