Two Quick Thoughts

After about 2:00 tomorrow (West Coast time) I'll be out of touch for 4-5 days because my grandfather (blood relative, not my Japanese grandpa) died and I'm flying to Bozeman, Montana for the funeral.  You wouldn't believe how few flights there are into Bozeman.  So just two quick thoughts one serious and one amusing:

1.  Regarding the new "Pledge of Allegiance is Unconstitutional" ruling.  Judge karlton's decision suggests that he was bound by the 9th Circuit's decision in the Newdow case.  That case was reversed by the US Supreme Court on the basis of standing--that Newdow did not have the right to bring the case because he was not a legally interested party.  That doesn't mean that he didn't have the right just to bring the case to the Supreme Court.  It means he couldn't have brought the case at all--including to the 9th Circuit.  How then can the Circuit's ruling on his case be a binding precedent?  According to the Supreme Court that case ought never have been ruled on at all. 

2.  Doesn't Sen. Kennedy know he is a Democrat?  Look at this quote from his speech at the Roberts hearing:

When it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy, the people have a right to keep government from intruding into their private lives and most personal decisions.

But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.

Above all, the people and their Congress must have a voice in decisions that determine the safety of our country and the integrity of our individual rights.

We expect Supreme Court justices to uphold those rights and the rule of times in both war and peace. All this and more will be before the Supreme Court in the years ahead, and its judgments will affect the direction and character of our country for generations to come.

Citizens have a right to be free from government intrusion in the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy?  Was this misattributed?

Congress should have a say on the integrity of individual rights?  Does that include duly passed Congressional bans on partial-birth abortions?  What the heck is he talking about.  It is like he doesn't know he is using Republican talking points.  Very odd.

And about the Roberts confirmation.  Aren't most of those 'questions' just speeches with a slight inflection at the end?  The whole thing seems like senatorial grandstanding rather than anything remotely useful or interesting. 

Comments

[Jesurgislac]

I'm so sorry to hear about your grandfather, Sebastian.

[liberal japonicus]

Sorry about your loss. As for connections to Bozeman, we used to take students to Bozeman and making the connections was hell.

That case was reversed by the US Supreme Court on the basis of standing--that Newdow did not have the right to bring the case because he was not a legally interested party. That doesn't mean that he didn't have the right just to bring the case to the Supreme Court. It means he couldn't have brought the case at all--including to the 9th Circuit. How then can the Circuit's ruling on his case be a binding precedent? According to the Supreme Court that case ought never have been ruled on at all.

So if a higher court throws out a case because of lack of standing, that means every decision associated with it is off limits as well? The reason I ask is that I thought that Korematsu, though vacated by coram nobis, was still considered a decided case and its precedent still stands. I realize that a lower court vacated the decision, while the Supreme Court made the original decision, but by the reasoning you give, Korematsu should also have no binding precedent.

IANAL, so apologies if this is a silly question. I know you won't be back for a while, so whenever you get a chance to get back to this is fine.

[liberal japonicus]

Tried to italicize Korematsu. Sorry about that.

[bob mcmanus]

My condolences

Volokh on Newdow

Includes trackbacks and comments;Not for me to say Karlton was right or wrong

[bob mcmanus]

Bashman thinks Karlton Beast

Beldar on Bashman

Beldar kinda hints the the legal system wants SCOTUS to make a decision on the merits so we can make Newdow go away

[liberal japonicus]

Now I'm really confused. From VC

The Court, however, reversed the decision rather than vacating it, and the district court here held that "A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority." See Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) ("A decision may be reversed on other grounds, but a decision that has been vacated has no precedential authority whatsoever."); Pines Land Co. v. U.S., 274 F.3d 881, 894 n.57 (5th Cir. 2001) ("This case illustrates the important difference between our treatment of a panel opinion after vacatur by the Supreme Court and our treatment when a judgment is reversed on other grounds. While our prior opinion in Leiter Minerals II did not bind the Little Lake panel because it was vacated, the opinion in Little Lake binds us because only the judgment was reversed on other grounds.").

But

But using the seldom used writ of coram nobis, they vacated his original criminal conviction for violating the relocation order based on the government knowingly withholding information that it had demonstrating that Japanese Americans were indeed not the security threat that the government claimed.

link

and

In granting the Korematsu coram nobis petition, Judge Patel proclaimed:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.

From Jerry Kang's downloadable pdf here

(emp all mine) Help?

[John Thullen]

My condolences to you, Sebastian.

That is an odd Kennedy quote. Did he misspeak?

An alternative theory is that he has gone stark raving mad like Tom Delay, not to mention George W. Bush. Could Al Qaeda have gotten hold of some sort of aerosol wacko spray and let it loose over Washington?

[Edward]

Sincere condolences to you and your family Sebastian.

[CaseyL]

My condolences, Sebastian.

Re the Pledge case: I think Newdow is a crank, one; and two, I agree that The Circuit is probably angling to get the case decided on its merits.

[tonydismukes]

"Aren't most of those 'questions' just speeches with a slight inflection at the end?"

You noticed that too, huh?

[M. Scott Eiland]

Korematsu wasn't vacated until forty-odd years after it was originally handed cown, and the writ was issued by a lower court--that's a bit different than this case. Furthermore, the relevant reasoning in Korematsu--the "strict scrutiny" rule about racial classifications--was cited and affirmed in future cases, so that it now has an independent existence from Korematsu itself. If one was picky, perhaps it would be proper to cite the successor cases which have not been vacated instead of Korematsu itself, but since the adoption of the strict scrutiny standard was not the reason that Korematsu was and is rightly despised--rather, it was the less than wise application of that standard to the situation of the Japanese-American internees--it seems a bit silly to decline to cite Korematsu as the source of the doctrine even though the decision itself was vacated. No Life Newdow's last expedition through the Ninth Circuit on this issue merits no such treatment, and the judge is genuinely deluded if he thinks he is "bound" by it.

[Edward]

bye itals

[M. Scott Eiland]

Re the Pledge case: I think Newdow is a crank, one; and two, I agree that The Circuit is probably angling to get the case decided on its merits.

The Supremes will oblige, for two reasons:

1) Conflicting precedents in multiple federal circuits now exist on the Pledge issue, and;

2) Short of a lightning bolt that would convince me of the existence of a benevolent Deity who loathes the deeply meddlesome and stupid, No Life Newdow isn't going away, and the Supremes know it.

[liberal japonicus]

Thanks Scott. While rummaging around in Jerry Kang's homepage, there was a copy of his newest paper, _Trojan Horses of Race_. Fascinating paper, still trying to get my head around it, urge everyone to read it.

[liberal japonicus]

When I posted earlier, I closed the tags for the Italics, but they are back. I (and apparently Edward) tried to close them just now. Now sure what the deal is.

[Edward]

I'm not seeing them LJ...looks closed now, no?

[hilzoy]

Hah. Now they're closed.

Seb: from Google's cached copy of Kennedy's opening statement, I find:

"We also are a government of the people in which citizens have a strong voice in the great issues that shape our lives. Our system of checks and balances was drawn up in full awareness of the principle that absolute power corrupts absolutely, and was designed to make sure that no branch of government becomes so powerful that it can avoid accountability. The people have a right to know that their government is promoting their interests, not the special interests, when it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink, and the food and other products we buy. The people have a right to keep government from intruding into their private lives and most personal decisions.

But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own."

This (with the right punctuation, etc.), makes K's statement make a lot more sense.

[ral]

Sebastian, I send my condolences and wish you a safe trip.

[Gary Farber]

I'm sorry to hear about your grandfather, Sebastian. My condolences for your loss.

[Sebastian Holsclaw]

Ah, that punctuation makes it sound much less ridiculous.

[John Thullen]

So, what's the deal on the two different Kennedy quotes?

[Sebastian Holsclaw]

My guess is that I was working off a rougher transcript. Though it was the New York Times Transcript.

[Dantheman]

My deepest sympathy on your loss, Sebastian.

[Grackel]

My condolences also, Sebastian; and might I note that the intelligence of your post - good questions - typical as it is of your contributions, is one of the things that makes me a regular reader of this site (although infrequent commenter.)Thanks.

[hilzoy]

Sebastian: my condolences as well.

[Anderson]

Very sorry for your loss, Sebastian.

And thanks for the Pledge post. Alas there is much too much confusion posted over my name in various comment threads on the topic.

The most persuasive explanation of the judge's opinion, to me, is that he strained to avoid reaching his own decision on the merits, preferring to pretend himself bound by the reversed 9th Cir. panel, because he considers the existing legal tests & precedents hopelessly confused. See his last footnote in his opinion.

Myself, I think the "under God" is silly, irrelevant, and divisive, but I can't really believe that it's unconstitutional, in a country where schoolchildren are free to remain silent rather than say any part of the Pledge at all. See Justice Jackson's great opinion in W. Va. State Bd. of Educ. v. Barnette.

The concerns about impressionable schoolchildren are not wholly misplaced, but I don't really believe that it does children much good to be *that* sheltered. If you're old enough to be skeptical about "under God," you're old enough to begin dealing with the majority.

[Anderson]

P.S.---I've just reread Jackson's Barnette op linked to above, & if you've never read it, this is your chance. Marvelous stuff. One can barely imagine such an opinion issuing from today's Court.

(Frankfurter's dissent, IIRC, is often lauded by Federalist Society types, though I take it more as an unintended reductio ad absurdum of the position it argues.)

[M. Scott Eiland]

For those around here who think I never have anything kind to say about a Democrat, let me say that Robert Jackson was one of the greatest Justices ever to serve on the United States Supreme Court, and that his majority opinion in Barnette--though I would choose his Korematsu dissent as his greatest contribution to the Court's body of work--is a shining example of why I believe that to be so.

[Anderson]

Aw, Scott, here I was half-thinking I'd pull your chain with that Frankfurter remark, and you go & get all gracious.

The Korematsu dissent is indeed great, though I'm biased in retrospect, because Korematsu seems like such an obviously indefensible opinion, whereas a lot of Americans today would cheerfully see Barnette overturned. And yet, of the two Jackson ops, Barnette is the majority op and Korematsu the dissent. America is a scary place sometimes.

The only black mark I can make, offhand, against Jackson, is that he gave us that "The Constitution is not a suicide pact" line (not in those words). Which does serve the useful function of indicating bad arguments; I've never seen a good one with it.

[Anderson]

First, my congratulations to the usual suspects on enjoying their Saturday afternoon somewhere besides the Internet.

Those of us condemned to draft a brief on a bad-faith claim, however, have little alternative.

Now: having just revisited the dissents in Korematsu (handily available at Scott's link), I'm less impressed with Jackson's than with the others.

Jackson does not, it seems to me, really dispute that the Army can do what it wants. He just thinks that the Court shouldn't approve it.

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

Of course, the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

Frankfurter couldn't have said it better. Jackson basically throws up his hands, or rather, washes them: "violate the Constitution if you will, Army, just don't expect us to help you."

Contrast Murphy's dissent:

Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.
"What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions."

(citation omitted).

[Morat]

The inclusion of "Under God" in the Pledge is clearly unconstitutional (one needs only glance at the Congressional rhetoric and floor statements when it was inserted in the 50s to tell that) under pretty much any of the Church/State seperation tests currently in use.

Having said that -- it'll stay. The Supremes will shoehorn it in under "Ceremonial deism" and issue a ruling that makes it clear that you can't get away with inserting similar phrases in the future. Basically their 10 Commandments decision: "It's been that way for fifty years, it's clearly wrong, but screw it -- we're not rocking the boat. But you can't do it anymore."

The real issue with Newdow, and the 9th's first opinion reinforced this, is that there is NO WAY the "Under God" bit of the Pledge is Constitutional -- and it's entirely because the Pledge is routinely recited in public schools. It's a muddled mess -- you can negate "under God" and piss off half the country, you can ban it's recitation in school and piss off even MORE of the country, or you can pretend it doesn't violate the Constitution -- even though every lawyer and judge in the country will know you're BS'ing it.

If you do the latter, you run into real problems. The bulk of rulings relating to religion in schools takes the view that -- because of the authority role schools and school figures take to children -- it's virtually impossible to have a minimal impact. You can wiggle by Church/State issues with adults under the "Reasonable adult" standard, but with kids in school you're forced to own up to the fact that you're subjecting kids to a state-run authority they're told to believe -- meaning any reference to religion is a problem. So even if you go the "it's not really doing any harm" route, you're opening a lot of holes in current precendent dealing with schools and what's allowable there. Because in the past, even the slightest HINT of harm (or misuse of state authority to promote a religion) was considered sufficient. The "Under God" provision -- because of the clearly religious reasons it was inserted -- fails the adult test. Under the MUCH stricter school setting, it should fail even more clearly. So what do you throw away? Do you throw away the adult tests? The stricter school standard? Or do you kinda BS through it and claim nothing changed, but this doesn't count because Congress said "no backsies" back in the 50s?

On a further note, the Pledge as routinely said in many public schools (including those in the district my wife works for) clearly violate the Constitution as well, as they're coerced and offer no real "opt out" method for those who have religious objections (Jehovah's Witnesses and, I suppose, atheists although "religious objections" really convey the wrong sense there), despite clear Court rulings on this subject in the past.

However, I live in Texas, so I'd rather stop executing innocent people and at least offer fair trials to the guilty first.

[Gary Farber]

"...those who have religious objections (Jehovah's Witnesses and, I suppose, atheists although "religious objections" really convey the wrong sense there...."

How about "conscientious objections"?

"However, I live in Texas, so I'd rather stop executing innocent people and at least offer fair trials to the guilty first."

You're talking crazy talk!

[Jackmormon]

Oh, it's not just Jehovah's Witnesses and atheists who object to pledging fealty. Unless their faith has really managed to square the United-States-under-God circle, the devout would be justified in squirming under what was for me as a young believer a rather idolatrous ritual. Swearing obediance to a flag as a representative of a nation as guaranteed by God just seemed wrong; I took my God without flags, and my theocratic state had been denied within family memory: I remained silent, yet devout, during the pledge.

(These days, I buy hotdogs during the 7th inning stretch to avoid such theological conundrums.)

[dutchmarbel]

My sincere condoleances Sebastian.

[Gary Farber]

"Swearing obediance to a flag as a representative of a nation as guaranteed by God just seemed wrong...."

I haven't wanted to bore by talking about it yet again, but as it happened, I went through a mildly big thing when I was in elementary school (the precise grade no longer is clear in my memory, though 4th or 5th is most likely, with 3rd possible; I'm pretty sure it was neither later nor earlier), by insisting I couldn't be made to say the Pledge, and getting sent to the Vice-Principal's office, where I didn't back down (the usual result; he was the usual sort of VP that had kids tremble at the mention of his boogie-man name), my parents were brought in, there was talk of lawyers, the whole thing went on for a few weeks, and whatnot, before P.S. 99 admitted that the law was on my side (then), and that yes, I couldn't be made to say the pledge involuntarily.

This wasn't in the least at my parents' instigation; they sort of unenthusiastically, but with a mix of amusement and irritation, backed my initiative; I was an immensely stubborn child.

This is by way of my background attitude on mandatory Pledging. But I've never thought of "under God" as construable as indicating "as guaranteed by God."

That attitude is certainly indicative of some of the attitude behind the pledge, and certainly one gets the feeling that some enthusiasts for it share the belief that the U.S. is so guaranteed, but it seems to me that under normal English interpretation, it's instead saying something to the effect that God Is Up There Uber Alles, and that's all (which is enough, but never mind). I don't see a "guarantee" in the text, though perhaps in the spirit.

I don't have anything particular against voluntary Pledging, by the way. I don't take the phrase "to the flag" to mean anything more than "as a symbol," myself, and thus see the objection to that phrase as, well, rather silly, actually, if made as a literal charge, rather than as a figurative or symbolic or general charge. Beyond that, the pros and cons of the odd little ritual are debatable, but don't strike me as terribly important one way or another, really.

Similarly, there are plenty of minor questions about whether this symbol or that inscription or behavior or whatever squares fully with proscribing Establishment of Religion where I think the question is intellectually completely clear-cut, but practically of relatively little consequence, and so I don't lose sleep over the practice, theoretically wrong though I agree it is (a small cross in a city seal, perhaps, or the invocation of prayer in Congress) or opening SCOTUS ("God save this honorable Court," anyway).

[Anderson]

See, without this opportunity to rebel against the system, Gary would be someone completely different today ... posting at RedState, even!

[rilkefan]

Time-stamp test.