Bluenose

I was wrong.
I forgot a small detail when I posted in the mega-thread on the pledge case, and now that thread is so big I can't find that particular post. I need to try to clarify the complex system of American courts. I hope this is helpful for those around the world who will be most familiar with other legal systems.

First, since I live in North Carolina, a criminal case starts in District Ct, goes to Superior Ct (jury trial), then Ct of Appeals, last to state Supreme Ct. Civil cases cover several types and go to other courts than criminal. The final word on all state cases is state Supreme Ct.

Second, other states have different systems with different names for the various levels. EX: Supreme Ct in New York is not the final word, the highest ct is the CT of Appeals. California has district courts of appeals, where NC has only one. Then each state can change their system so at one time a felony case in NC started in Superior and went to Supreme (before they has a CT of Appeals). Some states' courts are so large they have 'departments' others have 'divisions'. Each state can modify its rules and proceedures, so when reading a US Supreme Ct case from the past, you may find names of courts you don't have in your state, etc.

Third, all federal courts are limited in subject matter jurisdiction. Each state has at least one US District Ct, several states are in each Circuit Ct of Appeals, and one final US Supreme Court.

Now, what I forgot was the Ninth CCA is the only Circuit where EN BANC does not mean all 'active' judges. What I said about en banc would apply to the 12 or 14 others. Only there does en banc have 11 of the 30 or so total 'Senior' and 'Active' judges. So the question remains, how do they pick the 11?

gallo

Since this would get lost at the end of that huge chain of posts re: the decision by the 9th Circuit Court of Appeals, I'll put it up here.

A couple lawyers I know who read the decision weren't surprised when Judge Goodwin stayed his own opinion. Some of the discussion on the internet has been that he is seeking input from other judges of the 9th Circuit or intends to recommend a hearing by the 9th Circuit en banc.

These lawyers speculate that this is not the case. They think that the stay was issued because he has already heard from other judges and is now rewriting the opinion. At first reading they both agreed that the opinion is actually a technical error that will be overturned no matter what. Neither of these lawyers is a fundamentalist Christian conservative, by the way.

Here is how they read the decision:

The courts have no jurisdiction over Congress and may not instruct it on how it should perform its duties. The courts may not issue orders directing Congress to enact or amend legislation. Thus, Congress is not a proper defendant.

The courts have no jurisdiction over the President and may not order him to alter, modify or repeal any act of Congress. Further, the President lacks the authority to do so. Neither may he order the Congress to do so. Thus, the President is not a proper defendant.

The plaintiff-appelant has no standing in the Sacramento City Unified School District (SCUSD) and thus the SCUSD is not a proper defendant.

The above decisions of the court are correct (according to my sources).

That leaves the United States of America, the State of California, and the Elk Grove Unified School District (EGUSD) as proper defendants.

This opinion decided that 4 U.S.C. §4 was unconstitutional. In otherword, the case was decided against the United States in finding that the Pledge of Allegiance is unconstitutional. But 4 U.S.C. §4 only encodes the words, nothing more. It does not require that it be said by anyone in any situation. Any requirement that it be said was declared unconstitutional in 1943. The original code (36 U.S. §1972) as amended in 1954 was abolished in 1998. The Pledge is now found in the above mentioned 4 U.S.C. §4.

The State of California has a law that requires a patriotic exercise by students in public schools each day. It does not require that the Pledge be said but only states that recitation of the Pledge fulfills the requirement.

Only the EGUSD has a policy that requires that the Pledge be recited once each day. Therefore, the correct decision should have been that the policy of the EGUSD was unconstitutional. The others are on shakey ground.

The prediction of my legal consulatants is that the 9th Circuit Court will either reverse its decision or will amend the decision to find that the EGUSD policy is unconstitutional, setting aside any opinions in regard to the United States and the State of California.

When I informed my legal consultants (practicing attorneys) that Dr. Newdow had degrees in both medicine and law, they wondered at his competence as a lawyer - why would he include Congress, the President, SCUSD, or the State of California in the first place? They think that part A of the opinion was a no brainer.

No matter. At first when I read the decision I was shocked that this issue had been taken up. There are still public schools where christian prayers are conducted by teachers, where the Bible is read daily, where pre-game ceremonies include christian prayers, where students who choose not to participate in christian prayer suffer ridicule from their christian counterparts. This may not have been the time nor the place to draw this line in the sand. Christian fundamentalists have not yet been convinced that it is unconstitutional and offensive to impose their religion on others by government. This decision has been a whining point for fundies - they are being persecuted. The evil doers are trying to silence them and prevent their worship. A reversal, even for technical reasons, will be declared a great victory and a justification for the claim of a christian nation.

By the way, I am not an attorney and have only repeated what I understood from the discussion. And of course, at this point it is opinion and speculation only, and nothing more.

ohwilleke

I think it is as good a time as any to draw the line in the sand. The Supreme Court shows no sign of improving in the near future, and has been more protective of the first amendment than many other constitutional rights. The precedents are already there and aren't likely to improve. Indeed, now the U.S. Supreme Court is in a position to say, "if you don't like it, go to a voucher school."

Also, many decisions which are unpopular when decided (Roe v. Wade, Miranda, Brown v. Board, e.g.) subsequently become widely accepted. For instance, no one marches on Washington in force any longer to eliminate the prayer in schools decision.

{edited by Toto to fix tag}

[ July 01, 2002: Message edited by: Toto ]</p>

hezekiah jones

<a href="http://www.appellate-counsellor.com/9thcir/frap35.htm" target="_blank">Ninth Circuit En Banc Determination</a>

hezekiah jones

As for the plaintiff's standing, note that Fernandez concurs with Parts A, B, and C of Goodwin's opinion, although Fernandez expresses footnoted "misgivings" as to Newdow's position in reaching the federal Act, claiming that Congress "has not compelled anyone to do anything."

If John Ashcroft appeared at a podium emblazoned with a revised Justice Department seal featuring a blazing crucifix and the legend "John 3:16," presumably he wouldn't be "compelling anyone to do anything" either.

Nonetheless Fernandez' dissent is only to Part D of the opinion, which is the establishment clause analysis.

Bluenose

Thank you, hezekiah jones, for the link and info.

Toto

I have to disagree with you about Roe v. Wade. Roe was the culmination of a series of cases in which the Court overruled legislative restrictions on birth control, each of which was quite popular with the public. I don't think that the Court foresaw the reaction that Roe would engender in opposition - I expect that they thought everyone would just applaud them for striking down another anti-sex law.

After all, in 1973, New York had already legalized abortion, and many other states had liberalized their rules. Abortion was widely available, either legally or illegally, in the country.