beekay

I would like some help on writing a rebuttal to the following letter to the editor:

Points I will probably make:

1. What the majority of Americans thinks has no bearing on the constitutionality of having God in the pledge.

2. If I understand correctly, the pledge was not "banned from schools" but rather the schools are not to lead students in the pledge. Kids can say the pledge all they want.

What I don't know about is the rejecting of the friend of court briefs. Can someone help me verify and make sense out of that bit? Have they actually been rejected? If so, why? If they were rejected, then I can sort of assume that briefs filed to help Newdow were also rejected ... right?

Grassfire.net ... now that is an interesting website and organization. Never heard of them before now. They also are trying to protect 10 commandment displays.

Thank you in advance for your assistance.

Mageth

2. If I understand correctly, the pledge was not "banned from schools" but rather the schools are not to lead students in the pledge. Kids can say the pledge all they want.

Not quite. Schools (actually, the ruling only covers those in the territory covered by the 9th circuit) can lead kids in the pledge, but only the pledge sans "under god". Students can add "Under God" if they so wish, as long as they're not disruptive.

Mageth

I found several references to various orgs that filed amicus briefs on the case, but I couldn't find any information on any that were rejected.

beejay

(until a real lawyer comes by to explain this better...)

I found this on the Internet. Doesn't make it true, of course, but I think its plausible.

I don't know if groups supporting Newdow would have filed such a petition, since those groups would have little reason to ask for a rehearing (being happy with the original decision.)

I would guess that the court has to decide if the petitioners would be presenting information that could help the court make a decision. There is no right to file amicus curiae briefs. And it's not a matter of voting by the petitioners. So piling up briefs is not useful for the court.

Here's a link to a PDF of the courts decision denying the Senate the right to intervene in the case. The court indicated it would accept an amicus brief from them.

Court denying Senate's request to intervene

It's also the case that the court stayed the ruling, pending appeals. So kids in California are still being led in saying "under God".

beekay

Thank you Mageth for the clarification on one of my points.

I also have been scouring the web and can find no references at all to the fate of these briefs. I wonder where the writer got this information?!

edit ... thanks for that beejay. We must have posted at about the same time. I still don't understand ... but once I study it and think on it a bit, I'm sure I'll grasp what is going on. I then want to pass on what I learn to the newspaper's readers so as to rebut the letter to the editor I posted above.

beastmaster

Here is the 9th Cicuit rule governing friend of the court (i.e., "amicus") briefs:

http://www.appellate-counsellor.com/9thcir/frap29.htm

Basically, the Court acted entirely within its discretion in denying leave.

The Court must have decided that the amicus arguments would not add anything of value beyond what was already known to the Court.

Check out the Advisory Committee Note at the bottom of the page I linked which states that:

"The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. . . . [A]mici briefs should not repeat arguments or factual statements made by the parties.

"Amici who wish to join in the arguments or factual statements of a party or other amici are encouraged to file and serve on all parties a short letter so stating in lieu of a brief."

Thus, grassfire.net and the others are free -- and indeed are encouraged -- to submit a short letter to the Court and the parties expressing its opposition to the Court's decision.

There is no censorship or "refusal to hear the voice of 50,0000 citizens" here.

beastmaster

Amicus briefs are generally allowed only when the third-party has a unique perspective on an important issue raised by the case but not adequately represented by the two parties before the court.

The Newdow case has only one issue and the parties already have an active interest in presenting the best arguments on each side.

Courts are reluctant to allow duplicative amicus briefs because, otherwise, parties would use amici as proxies in order to circumvent page limitations in their briefs. Denying leave to file an amicus brief is hardly unusual and bears no intimation of bias (particularly when the court denies leave universally, as here).

beejay

Here's the link to the quote I had above.

Denied amicus curaie brief

The second section has a brief discussion of the denial of the brief and a link to the brief itself.

(Just to give you one example of a rejected brief.)

But beastmaster has it exactly right. Amicus ("friend of the court") briefs are meant to help the court make decision. They are not a method of voting to see which side has the largest popular support.

The court is not refusing to hear 50,000 people. It is trying to make a legal decision based on the law.

beekay

Thank you very much for your help and input, folks!!

Sometimes I am truly amazed at how reactionary some people can get. I propably shouldn't be so surprised, but oh well.

I plan on writing about this subject in my column for next week. I'll link to it next Wednesday.

Once again, thanks.

hezekiah jones

If there are any arguments in that pile of "rejected" amicus briefs that Foley & Lardner overlooked, I'll kiss Jay $ekulow's ass on City Hall steps.