ConfirmThem

By Marshall Manson Comments () / Email this page » / Leave a comment »

There will be lots on this as the afternoon wears on. But a federal judge has relied on the Ninth Circuit precedent to throw out the pledge -- again. Michael Newdow is representing the plaintiffs.

Here's a missive from Reid -- the lawyer -- about the legal issue.

Update: Reid has sent an edited version, and I have inserted it as a replacement below.

We just learned that a federal Judge in California has apparently ruled that the voluntary recitation of the Pledge of Allegiance by school children is unconstitutional under the First Amendment’s Establishment Clause. In reaching this conclusion, the Judge apparently felt bound by the 9th Circuit’s much-derided Newdow decision that was later reversed by the SCOTUS for lack of standing. However, why should a district judge be bound by the 9th Circuit’s opinion? After all, if Newdow did not have standing, then the 9th Circuit should have never reached the merits in the first place. Such dicta or an advisory opinion should not be binding on anyone, including a district judge in the 9th Circuit, right?

Well yes, but it’s even more complicated…

Thinking through the legal conundrum logically…Standing goes to jurisdiction, when it’s Article III standing, but the Supreme Court threw out the Newdow case on prudential standing grounds. While there are narrow differences, a plaintiff should have to establish standing before the court can rule in his/her favor. Thus, since the SCOTUS concluded (on account of lack of standing by Newdow and his daughter) that the 9th Circuit and the district court below did not have the power to rule on the constitutionality of voluntary recitation of the Pledge in schools, then that whole discussion of the merits should have never taken place. The district court disagrees by stating that it courts may avoid a sticky prudential standing question to dispose of a case more easily on the merits. But this seems to be when the case is disposed of against the party that must establish standing. So we go back to the rule that the Ninth Circuit needed standing to reach the merits, and the merits discussion was inappropriate. So regardless of what that discussion constituted, the district court was certainly not bound to follow it. Rather, the district judge should have heard the case afresh as if the Newdow merits never ever occurred.