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?

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.

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.

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.

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