Thursday, March 11, 2010

Newdow v. Rio Linda USD (9th Cir. - March 11, 2010)

Hopefully you didn't forget about the Pledge of Allegiance cases. Because they're not over. Sure, the Supreme Court reversed the Ninth Circuit's earlier invalidation of teacher-led recitations of the 1954 version of the Pledge, which includes the words "under God." But remember that is reversal was only on procedural standing grounds, since the student's mother intervened to argue the other way. But that's easily solved. Plaintiffs got the parent of a new student -- this one with full custody -- to bring the same challenge. So we're back in the Ninth Circuit again.

The case was argued over two full years ago, back in December 2007. With everyone and his mother filing amici briefs.

So now the Ninth Circuit has to decide the merits of the case again. With the backdrop of both the Supreme Court's reversal (albeit technically on standing grounds) as well as the firestorm of controversy that accompanied its initial opinions.

Guess how the panel comes out? With the following (important) information: the panel consists of Judges Dorothy Nelson, Reinhardt and Bea.

Did you guess that the opinion was not unanimous? Of course you did. Did you guess that Judge Bea voted to find the Pledge constitutional, and that Judge Reinhardt voted the other way? Yep. Without a doubt. So which way does Judge Nelson vote?

I won't comment on the various opinions much. In part because this is an exceptionally high-profile case, so I'll have very little to add beyond what other people will say. But in large part because I can't add much beyond the various opinions themselves. Which span 193 single-spaced pages; as a result, most everything that can rationally be said has already been said by the authors themselves. When you've got over two years to write an opinion, and you know that every word you say will be exceptionally scrutinized, trust me, you do a good job. So I refer the reader to the opinions themselves.

The only thing I'll say is that this is (1) a classic Judge Reinhardt opinion, (2) a classic Judge Bea opinion (perhaps a bit more moderate given the inclusion of Judge Nelson), and (3) for better or worse, a somewhat predictable vote from Judge Dorothy Nelson. As for the latter, of course I do not know the inside of Judge Nelson's heart, or what she'd decide in a vacuum. But, given the prevailing context -- with the public and the current Supreme Court's view on the matter fairly clear -- I think Judge Nelson's decision is consistent with what one would expect. Judge Nelson and Judge Reinhardt are studies in contrast. Judge Reinhardt relishes a fight, and is more than willing to swim against even an overwhelming tide. Again, for better or worse, that's not Judge Nelson. Who has both a different personality as well as a different sense of what it means to be an appellate judge in these sorts of cases.

Notwithstanding the earlier Ninth Circuit opinion, I would not expect this one to be taken en banc. Sure, there may well be a call for a vote. But the Ninth Circuit has more Judge Beas and Judge Nelsons than Judge Reinhardts. Again, for better or worse.