The Pledge, Prudence and Precedent: A Comment on Judge Karlton's Recent Ruling on the Words "One Nation Under God"

By VIKRAM DAVID AMAR

Friday, Sep. 30, 2005

On September 14, federal district court judge Lawrence Karlton struck down a school district's daily practice of inviting students to recite the modern version of the Pledge of Allegiance insofar as the Pledge contains the words "one nation under God."

If this ruling seemed to many Americans, as Yogi Berra would say, like déjà vu all over again, it should. The case is a do-over of the litigation brought a few years back on behalf of a nine-year old girl by Michael Newdow -- atheist, part-time attorney, doctor and father of the girl - that ended up going all the way to the Supreme Court. Alert readers may recall that in that case, the Ninth Circuit decided in favor of Mr. Newdow (and in doing so parted company with other lower courts across the country), and then the Supreme Court ruled against him.

The players and issues this time around are largely the same. Michael Newdow is again suing under the Establishment Clause of the First Amendment, although this time he is acting not just as a representative for his daughter but also as a lawyer on behalf of other parents and children who object to the Pledge recital.

In his ruling two weeks ago, Judge Karlton said that as a lower court judge he was bound by principles of stare decisis - respect for that which has already been decided - to follow the Ninth Circuit's 2002 decision in Newdow's favor invalidating the Pledge recital policy.

The key question, of course, is how Judge Karlton could feel bound by the Ninth Circuit's ruling when the Supreme Court itself had undone that ruling just last summer. I think Judge Karlton erred in answering this question - in fact he is not bound by the Ninth Circuit's earlier decision, and is free (and obligated) to consider the merits of Mr. Newdow's Establishment Clause argument anew.

But to see how an able jurist like Judge Karlton could have erred is also to see how the Supreme Court's own work product leaves much to be desired. To appreciate all this, we must go back to Mr. Newdow's earlier lawsuit and how the Supreme Court resolved it.

The 2004 Newdow Supreme Court Court's Focus on Standing

It's a tricky issue whether Mr. Newdow's near-absolutist reading of the Establishment Clause has any merit. Just how much, or how little, government documents, officials, rituals, etc. may make mention of religious ideas, symbols or imagery is a very complicated matter -- and one that becomes even more complex in the context of impressionable elementary school children.

In 2004, the Supreme Court punted -- ruling against Mr. Newdow without having to talk about the meaning of the Establishment Clause -- by rejecting his legal "standing" to bring the suit in the first place.

The legal doctrine of "standing" tries to identify who the appropriate persons to bring particular kinds of cases are. In particular, Article III of the Constitution allows federal courts to hear only actual "cases and controversies" -- not abstract and fanciful disputes that unaffected parties might want resolved simply to satisfy their curiosity or their morality. Implementing the "case or controversy" idea, the Court has declared that standing must be based on real "injury-in- fact" caused by a defendant's past or threatened actions.

It is pretty clear that Mr. Newdow did allege a particular, concrete "injury-in-fact" traceable to the school district's policy to satisfy Article III; he asserted that his ability to help raise his daughter in the religious (or non-religious) fashion of his choosing was being frustrated by what he viewed as religious coercion and indoctrination on the part of the State. (Things would be different if Mr. Newdow did not have a daughter and instead were a plaintiff challenging the Pledge simply because he objected to the "indoctrination of the nation's youth.")

Why, then, did the Supreme Court reject Mr. Newdow's "standing"? Because standing requirements sometimes derive from sources outside of Article III; they come as well from "prudential" considerations that generate - to use the Court's words -- "judicially self-imposed limits on the exercise of federal jurisdiction."

Why Newdow Lacked Prudential Standing

Among these "self-imposed" prudential limits, said the Newdow Court, is the federal court practice and tradition of not stepping into "the realm of domestic relations." Federal court pronouncements that affect disputed family law rights and obligations that are defined by state law are particularly delicate, the Court admonished.

And in Newdow's case, these prudential concerns militated against finding standing, because of Mr. Newdow's complicated family situation. The girl's mother, Sandra Banning, and Mr. Newdow were never married. Over the years, the California family court rulings on which parent had more custody and control over the upbringing of the child were complex and uncertain. And, most crucially, Mr. Newdow and Ms. Banning have repeatedly expressed very different views - on religion and other matters -- concerning the upbringing of their daughter.

As the Supreme Court summarized: "This case concerns not merely Newdow's interest in . . . his child. . . ., but also the rights of the child's mother. . . And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution."

For these reasons, the Supreme Court in Newdow held that it is "improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. [T]he prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. . . . Newdow lacks prudential standing to bring this suit in federal court."

What It Means to Lack Prudential Standing - Judge Karlton's Error

With the Supreme Court's ruling in mind, let us go back to Judge Karlton's order of the week before last. Faced with a new lawsuit in which there were clearly some plaintiffs who satisfy both Article III and prudential standing (because many of the parent plaintiffs did not have complicated custody situations), Judge Karlton had to turn to the merits. And in addressing the merits, Judge Karlton found that he remains bound by the Ninth Circuit's ruling on the meaning of the Establishment Clause in the Pledge recital context.

Judge Karlton rested his decision -- that the Supreme Court's ruling did not wipe out the precedential weight of the Ninth Circuit's merits discussion -- on a technical distinction, and a theoretical one.

As for the technical point, he observed that the Supreme Court in Newdow ended its opinion by "reversing" the Ninth Circuit, rather than "vacating" the Ninth Circuit's opinion. Vacating the lower court ruling is ordinarily what a higher court does when it wishes to effectively erase the lower court ruling from the precedential books.

On this point, I think Judge Karlton is correct - "reversing" rather than "vacating" was sloppy.

But Judge Karlton understood that not everything should turn on that technical distinction. If, for example, the Court had used "Reversed" but found explicitly that Mr. Newdow had lacked Article III standing, even Judge Karlton would acknowledge that the Ninth Circuit's ruling on the merits would count for nothing - a merits discussion in a dispute that is determined on appeal not to constitute a case or controversy has no precedential weight.

But, as Judge Karlton remarked, the Supreme Court's rejection of the Ninth Circuit was not based on Newdow's lack of Article III standing; it was based on Newdow's lack of prudential standing. And that, argued Judge Karlton, makes all the difference. So long as there was a case or controversy within the meaning of the Constitution, the Ninth Circuit's adjudication of the merits has continuing vitality, and binds district court judges located within the Circuit.

This is wrong. The essence of standing requirements - whether Article III or prudential - is that a dispute be an appropriate vehicle for a federal court to make law. If standing of any kind is absent, that is another way of saying that we lack confidence that any federal court ruling on the merits would be carefully considered, fully fought over, and appropriately judicial.

Put another way, although the "prudential" standing limits are less clear-cut than the Article III limits, they all reflect the same general separation of powers and federalism concerns - as do other so-called "abstention" doctrines -- regarding what forms of litigation federal courts are empowered to entertain.

Thus, when the Supreme Court said to the Ninth Circuit that is was "improper for the federal courts to entertain [Newdow's] claim," and that the lower court wrongly "reach[ed] out" to decide the merits, this means not just that Mr. Newdow cannot himself benefit by any ruling on the merits (the narrow way Judge Karlton read it), but more generally that Mr. Newdow's claim was simply not a "proper" vehicle for federal court lawmaking.

Indeed, if (as Judge Karlton suggests) the Ninth Circuit's merits resolution is constitutionally trustworthy enough to bind lower court judges, why on earth should Mr. Newdow not have been entitled to its benefits in the first lawsuit? Why did he (and others) even need to file a new suit? Judge Karlton's account of standing doctrine provides no good answer to this key question.

Why didn't Judge Karlton see this? I think there are two reasons. First, prudential standing doctrine is said by the Supreme Court to be flexible and discretionary in a couple of ways. Unlike the "hard" Article III requirements, prudential standing limitations themselves have many exceptions created by the courts. Relatedly, if Congress wants federal courts to hear cases that would otherwise be barred by "self-imposed limitations," these limitations can disappear. (This isn't true for Article III limitations.)

So when it comes to prudential standing, there is flexibility and discretion, in that a court deciding for itself whether prudential standing exists in a given dispute has some leeway, and in that Congress can authorize standing where prudence would otherwise cut against it.

But the one kind of discretion that does not exist is a lower court's discretion to disregard a higher court's ruling (in this case the Supreme Court's ruling) as to whether prudential standing does or does not exist. Once the high Court has resolved that discretionary question, all other courts must take that determination as a given.

But the second, and larger, reason for Judge Karlton's confusion is that standing doctrine by the Supreme Court is itself such a mess. Virtually no one thinks standing decisions from the high Court - both Article III and prudential rulings -- reflect principled, coherent lines about which disputes really are well-framed and which ones aren't. Instead, most observers see standing for what it is - a manipulable set of factors that the Supreme Court uses to avoid deciding cases (like Mr. Newdow's) that it would rather not deal with for various reasons.

I sympathize with Judge Karlton; it is hard to take too seriously a body of standing law that itself seems so ad hoc. But, as Judge Karlton's order was correct in saying, even when a higher court's body of law is misguided or imperfect, you've got to do your best to obey it. And if (as I expect) his September 14 order is reversed and he is told he has to tackle Mr. Newdow's Establishment Clause claim on a clean slate, he'll have to fight through another body of law some people think lacks a lot of coherence - the cases construing the Establishment Clause itself.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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