How Appealing

Wednesday, September 14, 2005

In Thursday’s edition of The Washington Post: The newspaper will contain a front page article headlined “Roberts Frustrates Committee Democrats; GOP Optimistic On Confirmation.”

Charles Lane will have a news analysis headlined “A Conservative, Yes, but Not a Scalia.”

In other coverage, “Democrats Dissect Memos From 1980s; Nominee Attempts to Create Distance” and “‘Advise and Consent,’ Anyone?

And in other news, “Judge Rules Pledge of Allegiance in Calif. Schools Unconstitutional.”

Posted at 10:55 PM by Howard Bashman

In today’s edition of The Daily Journal of California: Lawrence Hurley has an article headlined “Roberts Steps Past Queries on Abortion; Nominee Supports Precedent to Avoid ‘Jolt’ to Legal System.”

And today’s newspaper also contains “Two Scholars View the Hearing” consisting of an essay by Law Professor Erwin Chemerinsky entitled “Testimony Misleads Judiciary Panel, People” and an essay by Law Professor Douglas Kmiec entitled “Adjourn Hearing–Approve Him Immediately.”

Posted at 10:33 PM by Howard Bashman

“The Philosopher-Justice: Stephen Breyer’s new book is a direct challenge to Antonin Scalia from within the Court; It’s about time.” Law Professor Cass R. Sunstein has this book review (pass-through link) in the September 19, 2005 issue of The New Republic.

Knopf’s web page devoted to the book refers to its author, Justice Stephen G. Breyer, as “a judge often regarded as one of the court’s most brilliant members.” The web page also explains that the book is “based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004” A preliminary draft of Justice Breyer’s lectures can be freely accessed here.

Posted at 10:23 PM by Howard Bashman

“Specter’s Questioning Reflects Recent Battle as Justices Move to Curb Lawmakers’ Powers”: Linda Greenhouse will have this news analysis Thursday in The New York Times.

Posted at 10:13 PM by Howard Bashman

“Roberts Says He’s Been More Expansive Than Confirmed Justices; GOP committee members stress Roberts has answered more questions than any other nominee”: T.R. Goldman and Tony Mauro have this report online at

Posted at 9:05 PM by Howard Bashman

In holding that the Ninth Circuit‘s Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today’s ruling is really, really wrong: The U.S. Supreme Court ruled in June 2004 that because plaintiff Michael A. Newdow lacked “prudential standing,” the judgment of the U.S. Court of Appeals for the Ninth Circuit had to be reversed. A five-Justice majority on the Supreme Court therefore saw no need to consider on the merits whether the recitation of the Pledge in public schools was unconstitutional. The remaining three Justices (remember, Justice Antonin Scalia was recused) concurred in the judgment, concluding that Newdow possessed standing but that recitation of the Pledge in public schools was not unconstitutional.

Today’s federal district court opinion treats the U.S. Supreme Court’s ruling as though it reversed the Ninth Circuit in part. In other words, the Supreme Court disagreed only with the Ninth Circuit’s conclusion that Newdow possessed standing to receive a ruling on the merits but did not disagree (or agree) with the Ninth Circuit’s resolution on the merits. I disagree with the district court’s view for two reasons. First, the Supreme Court’s reversal of the Ninth Circuit’s judgment was not a reversal in part, because otherwise the three Justices who disagreed with the majority’s prudential standing decision could not have concurred in the judgment based on their view that recitation of the Pledge was not unconstitutional. In other words, the remaining three Justices could not have concurred in the judgment unless the judgment had the effect of erasing the Ninth Circuit’s resolution of the merits. And second, the Supreme Court’s majority’s ruling was not a reversal in part. A typical reversal in part comes in a case where the court of appeals has issued two unrelated holdings: the color blue is more pleasant than the color red, and the number two is greater than the number four. If the Supreme Court grants certiorari to review the mathematical holding and thereafter reverses, holding that four is greater than two, the court of appeals’ holding concerning which color is more pleasing survives undisturbed. In Newdow’s earlier case, however, the Ninth Circuit’s ability to reach the merits depended on Newdow’s satisfaction of both Article III and prudential standing requirements. Because Newdow couldn’t satisfy the prudential standing requirement, the Ninth Circuit should not have resolved the merits, and the Ninth Circuit’s resolution of the merits was rendered a nullity.

Today’s federal district court ruling cites precedents for the proposition that a court may reach the merits where the existence of prudential standing is especially difficult to resolve. But the district court’s decision severely misapplies these precedents. A more accurate statement of these holdings is that where the question whether a plaintiff satisfies prudential standing requirements is especially difficult to decide, and on the merits a ruling against the plaintiff is relatively easy, the court may resolve the case against the plaintiff on the merits. I am unfamiliar with any precedent, prior to today’s ruling, holding that where the plaintiff’s ability to satisfy prudential standing requirements is too difficult to decide, the court can sidestep the standing question and rule against the defendant on the merits. Yet by allowing the Ninth Circuit’s earlier merits ruling to stand in a case where the plaintiff lacked prudential standing, that is the effect of today’s ruling.

Posted at 8:10 PM by Howard Bashman

“Judge OKs Everett’s Ten Commandments; Lawsuit challenging monolith is rejected”: This article appears today in The Seattle Post-Intelligencer.

The Seattle Times today reports that “Religious monument may stay, judge rules.”

And The Herald of Everett, Washington reports that “Judge allows Everett monument; A marker with the Ten Commandments can remain outside the police station.” The newspaper also offers this photograph of the monument.

You can access a copy of yesterday’s ruling of the U.S. District Court for the Western District of Washington at this link.

Posted at 5:44 PM by Howard Bashman

“News Flash: Republicans Like Roberts; Senators’ Rhetoric Leaves Little Time for Nominee to Get a Word In.” Dana Milbank provides this update online at The Washington Post.

Posted at 5:00 PM by Howard Bashman

“Judge rules Pledge of Allegiance unconstitutional; ‘Under God’ reference not appropriate for public schools, he says”: The San Francisco Chronicle provides this news update.

Posted at 4:00 PM by Howard Bashman

“For Roberts, path to high court splits candor, caution; Democratic senators have struggled to glean Chief Justice nominee John Roberts’s personal views”: Warren Richey will have this article in Thursday’s edition of The Christian Science Monitor.

Posted at 3:54 PM by Howard Bashman

A prediction: I predict that the U.S. Court of Appeals for the Ninth Circuit will disagree with U.S. District Judge Lawrence K. Karlton‘s decision issued today in Newdow v. U.S. Congress, insofar as Judge Karlton held that the Ninth Circuit’s earlier ruling in Newdow’s earlier case that recitation in public school of the Pledge of Allegiance is unconstitutional remained binding law in the Ninth Circuit even after having been reversed by the U.S. Supreme Court. Of course, if I am incorrect, then public schools within the nine States and two Territories located within the Ninth Circuit should no longer be reciting the Pledge of Allegiance.

Coincidentally, on Monday of this week the Ninth Circuit’s Circuit Executive Office issued a news release entitled “Dispelling the Notion of Judicial Activism.”

Posted at 3:14 PM by Howard Bashman

BREAKING NEWS — Here we go again: David Kravets of The Associated Press provides a report headlined “Judge: School Pledge Is Unconstitutional” that begins, “Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court.”

I have posted online at this link a copy of today’s ruling of the U.S. District Court for the Eastern District of California. Earlier pleadings filed in this case can be accessed via this link.

It appears that the basis for today’s federal district court ruling is the conclusion that the U.S. Court of Appeals for the Ninth Circuit‘s earlier ruling, in Michael A. Newdow’s earlier case, remains binding law in the Ninth Circuit, despite having later been reversed by the U.S. Supreme Court in a ruling that you can access here.

I considered the effect of the Supreme Court’s reversal on the precedential value of the Ninth Circuit’s ruling back in June 2004, after the Supreme Court’s ruling issued, in posts that can be accessed here, here, and here.

Posted at 2:24 PM by Howard Bashman

“No Comment: John Roberts possesses Washington’s most prized skill — the ability to say nothing at great length.” T.A. Frank has this essay (pass-through link) online today at The New Republic.

Posted at 2:22 PM by Howard Bashman

“Court Play: Aggressive Patent Litigants Pose Growing Threat to Big Business; Unlikely Phoenix Duo Push A Rival Near Bankruptcy In Prepaid-Cellphone Case; A Deposition on Car Thievery.” Today’s edition of The Wall Street Journal contains this front page article (pass-through link).

Posted at 12:20 PM by Howard Bashman