Judge Lawrence Karlton Screws Up the Pledge Case — Big-Time
Federal District Judge Lawrence Karlton ruled today in this opinion that having students recite the Pledge of Allegiance is an unconstitutional act. In so ruling, Judge Karlton claimed that he is bound by the Ninth Circuit’s previous decision, which was reversed by the Supreme Court on prudential standing grounds.
Judge Karlton is just plain wrong. Eugene Volokh says so, and so does Howard Bashman. The chances that both of these guys are wrong is pretty low.
But you still must be hankering for Patterico’s analysis, so I’ll provide it in the extended entry. Reading further is something that will be pleasant only to those with a taste for intricate legal analysis. The rest of you can skip directly to the post below making fun of John Kerry.
Judge Karlton failed to cite any cases that actually support his argument in a meaningful way. Worse, he screwed up a basic common-sense issue that most first-year law students understand — indeed, one that most intelligent teenagers understand: when it’s okay to use the phrase “Assuming for the sake of argument . . .”
This is a phrase you can use only when the assumption you are making favors the losing party. In law, you can’t assume your way to a win for the plaintiff — but you can assume that certain factors favor the plaintiff if you have decided that he will lose on the merits in any event.
Someone please explain this to Judge Karlton.
The key portion of Judge Karlton’s opinion is at page 22. He starts out with two fairly innocuous statements. First, he notes: “It is established that there is a distinction between a case being reversed on other grounds and a case being vacated.” He then points out the entirely correct proposition: “Prudential standing and Article III standing are distinct.”
Then Judge Karlton goes way off the tracks:
When a court lacks Article III standing, there is no jurisdiction because there is no case or controversy within the meaning of the Constitution. A federal court, however, may reach the merits when only prudential standing is in dispute. See, e.g., American Iron and Steel Institute v. Occupational Safety and Health Admin., 182 F.3d 1261, 1274 (11th Cir. 1999) (citing Steel Co., supra, for the proposition that “courts cannot pretermit Article III standing issues, but can pretermit prudential standing issues, in order to resolve cases where the merits are relatively easy”); Environmental Protection Information Center, Inc. v. Pacific Lumber Co., 257 F.3d 1071, 1076 (9th Cir. 2001) (suggesting review of the merits prior to a prudential standing determination is proper where “the parties retain a stake in the controversy satisfying Article III”). In sum, because a court may reach the merits despite a lack of prudential standing, it follows that where an opinion is reversed on prudential standing grounds, the remaining portion of the circuit court’s decision binds the district courts below. Contrary to the urging that a “fresh look” is demanded by Steel Co., this court remains bound by the Ninth Circuit’s holding in Newdow III.
As Syndrome from the Incredibles says: “Lame, lame, lame, lame, LAME!!”
First, while Judge Karlton cites cases that stand for the proposition that a case that has been vacated has no precedential authority whatsoever, he cites no case for the proposition that a case that has been reversed on standing grounds has precedential value on the merits. Nor does such a proposition make much sense; if we know that the case never should have been heard to begin with, why would the case’s holding be accorded any weight?
Second, Judge Karlton misreads the cases that he cites for the proposition that courts can breeze by prudential standing issues to address the merits. This is the “for the sake of argument” problem I mentioned earlier. You can accept someone’s assertions “for the sake of argument” only when you are going to decide against them anyway.
Plaintiffs in lawsuits win only when they can establish standing. So, you can say: “Assuming for the sake of argument that the plaintiff has standing to sue, he would lose on the merits anyway — so he loses.” You can’t say: “Assuming for the sake of argument that the plaintiff has standing to sue, he would win — so he wins.”
Today, Judge Karlton said the latter (silly) proposition is viable — but cited only cases that support the former proposition.
The analysis is about to get very complicated, but you can follow it if you simply keep in mind what I just said: Wins cannot be based on assumptions. You can assume a fact favoring a party to be true only if that party would lose anyway. In the standing context, the plaintiff must establish standing. If he can’t, then you can’t ignore standing unless the plaintiff would lose on the merits anyway. Then, and only then, is it okay to reach the merits of his claim (and only when the standing issue is merely prudential in nature).
Let’s take the cases cited by Judge Karlton one at time, starting with American Iron and Steel Institute v. Occupational Safety and Health Admin., which you can read here.
That case dealt with a challenge to OSHA regulations brought by two organizations, one of which was the American College of Occupational and Environmental Medicine (which the opinion referred to as the “Doctors”). The court ruled against the Doctors, and said in a footnote that it was “not troubled” by the standing arguments. The most difficult standing issue was brushed aside by the court, because the court could assume “arguendo” (for the sake of argument) that the standing requirement was met, and rule against the Doctors anyway:
We can pretermit the more difficult question regarding whether the Doctors’ members’ interests fall within the zone of interests protected by the OSH Act, cf. R.T. Vanderbilt Co. v. OSHRC, 708 F.2d 570, 576-78 (11th Cir.1983) (OSH Act confers prudential standing only on employee interests and employer interests), because prudential standing is flexible and not jurisdictional in nature, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1013, 140 L.Ed.2d 210 (1998) (suggesting that courts cannot pretermit Article III standing issues, but can pretermit prudential standing issues, in order to resolve cases where the merits are relatively easy). Therefore, we can assume arguendo that the Doctors’ individual members would have standing to sue in their own right.
The case does not stand for the proposition that a court can assume something for the sake of argument, and then use that assumption as a basis of its decision. You can make an assumption only when you then demonstrate that the assumption is irrelevant to the decision. Here, the assumption was one the court could make only because it was ruling against the Doctors in any event.
Nor does the case cited in the quoted passage, Steel Co. v. Citizens for a Better Environment, say anything different. That case rather adamantly states: “Hypothetical jurisdiction produces nothing more than a hypothetical judgment-which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning.”
Judge Karlton rushes to point out that this holding specifically applies only to Article III standing, and jumps on the statement by the American Iron and Steel Institute court that the Steel Co. case “suggests” that prudential standing requirements can be skipped to reach the merits. But again, that applies only when the merits show that the party arguably lacking standing would lose anyway. The Steel Co. case’s “suggestion” is based on the case of National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). But that case found that the relevant statute provided no cause of action to begin with — so the question of the plaintiff’s standing to come within that statute didn’t matter.
Is your head spinning yet? I warned you.
The main point is that not one of these cases allows a judge to assume standing and then rule for the plaintiff, as Judge Karlton has held (in effect) in the Pledge case.
Karlton is also wrong to say that the case of Environmental Protection Information Center, Inc. v. Pacific Lumber Co. “suggest[s] review of the merits prior to a prudential standing determination is proper where ‘the parties retain a stake in the controversy satisfying Article III.'” Huh?
Okay, the bottom line on this case is, it doesn’t say what Karlton says it says, and it has nothing to do with the issue at hand anyway. The next three paragraphs explain why in more detail, but you might get lost, so you can skip them if you like.
That case addressed a limited issue: when can a party who has won a judgment nevertheless file an appeal? The court said that this was an issue of prudential standing, which could be established (among other ways) “if future economic loss will result to the [winning] party on account of adverse collateral rulings.” The court said, in language quoted by Judge Karlton: “This route to prudential standing is powerful because it allows for review of the merits-if the parties retain a stake in the controversy satisfying Article III-of the adverse collateral order.”
In other words, the court said that prudential standing is established, thus allowing review of the merits, under the circumstance described (a collateral order having adverse consequences). The court also said that the circumstance was not available in that case, and review of a collateral order on the merits could not be had, because there was no Article III controversy.
I simply do not see how this case can be read as allowing review of the merits before a decision is made on standing. Nor would such a holding be particularly relevant to the question of the precedential effect of an opinion that had reached the merits but was reversed on prudential standing grounds.
I’m really wondering if Judge Karlton even read the opinions he is citing. It’s just slipshod work.
One last point: Ed Brayton has suggested that Judge Karlton had little choice because the Ninth Circuit ruled this way before on the merits, and would therefore rule the same way again.
Ed might have a point if we knew that the case will be returned to the same three-judge panel that rendered the original decision igniting the controversy — but I know of no reason to make such an assumption. And if that assumption is not sound, then who knows what will happen? A three-judge panel from the Fourth Circuit, looking at the same body of Supreme Court jurisprudence as the previous panel from the Ninth Circuit, concluded unanimously that the Pledge does not offend the Establishment Clause.
The sad fact is that the law in this area is so murky that the outcome of the case can depend upon which three judges hear the case. It is true that the Ninth Circuit has a much higher percentage of liberals than does the Fourth Circuit, and that the previous Ninth Circuit decision was written by a judge not generally known for his liberal views. Nevertheless, I can easily imagine a three-judge panel from the Ninth Circuit composed of at least two judges who would rule the same way that the Fourth Circuit has.
The bottom line: Judge Karlton’s decision may be reversed, and it may not. But his conclusion that he was bound by a case reversed for lack of prudential standing is, in my humble opinion, garbage.
UPDATE: Xrlq says the same thing, but far more entertainingly (and in far fewer words):
As best I can determine, the notion that a case can ever retain its precedential value as to other parties while lacking them as to the parties themselves is a brand new concept of precedent, which Judge Karlton appears to have created in a drunken stupor. Here’s hoping that the concept of a stupor-precedent doesn’t spread beyond this individual judge’s chambers. The last thing we need is for Arlen Specter to badger Justice O’Connor’s replacement over that.
Good one.
UPDATE x2: More from Goldstein and Michelle Malkin.
UPDATE x3: Thanks very much to How Appealing’s Howard Bashman for the link. Howard’s analysis of Judge Karlton’s decision, linked above, is much terser and better expressed than mine. Still, I am pleased that Howard has linked my analysis, because it means that my post will come in for close scrutiny by a highly qualified and very critical audience of careful legal readers. If I have gotten a point wrong, you are almost certain to hear about it from them.
Being a working stiff, I may not be able to respond to all criticisms during the day, but I will certainly look at them tonight, so please do leave any commentary below.
UPDATE x4: I originally said: “The main point is that not one of these cases allows a judge to assume standing and then rule for the plaintiff, as Judge Karlton has done in the Pledge case.” I changed the word “done” to “held” in the post, and added the words “in effect” in parentheses. Judge Karlton didn’t assume standing in this decision, of course. He simply held (in effect) that a court may assume standing to reach the merits and then rule for the plaintiff — in support of his holding that a reversal on the standing issue would not be a reversal on the merits. Thanks to Matto Ichiban for bringing this to my attention.
UPDATE x5: At his site, Ed Brayton later said in a comment that he believes Karlton was not bound by the Ninth Circuit decision, and was just trying to get out of making a decision.
[…] UPDATE x4: Patterico has much more. […]
damnum absque injuria » Moron Judge of the Day: Lawrence Karlton (38c04c) — 9/14/2005 @ 11:59 pmI knew there was a reason I didn’t want to become a lawyer.
Veeshir (68e89d) — 9/15/2005 @ 4:33 amI prefer messing with them.
You have to admit, though, that his final footnote ripping on the Supreme Court’s ten commandments cases is pretty damn awesome.
Oh, and this guarantees that all of Bush’s Supreme Court nominees get confirmeed. So whatever.
Angry Clam (a7c6b1) — 9/15/2005 @ 5:19 am[…] And Pattycakes: Judge Karlton is just plain wrong. […]
SayUncle » Blog Archive » Under God (9b413a) — 9/15/2005 @ 5:34 amFederal Judge Rules Against Pledge of Allegiance In Schools
Live from San Francisco…
God help us.
AP reports: “The Pledge of Allegiance was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist whose previous attempt to get the pledge out…
California Conservative (53ecd1) — 9/15/2005 @ 5:43 am“Here’s hoping that the concept of a stupor-precedent doesn’t spread beyond….”
Great. Now we can have super-duper-stupor-pooper-scooper precedents.
Dwilkers (a1687a) — 9/15/2005 @ 5:54 amSo Patterico, with all this hefty legal analysis, when do you have time for your real job? 😉
MOG (a7e84f) — 9/15/2005 @ 9:06 amLet’s not get overheated here:
I was in grade school when “under God” was inserted into the Pledge. It took us a few days to get used to it, but we did.
However, at the time we didn’t see any great necessity for it. The Pledge was OK without it, and we knew we were under God anyway. But the adults told us to say it so we did.
We do need the Pledge and taking the 2 words out will not cause great harm. But don’t think it will silence any of the critics, they have bigger fish to fry and will move on the next target.
Black Jack (ee3eb6) — 9/15/2005 @ 9:08 am[…] Update: Here is a good analysis of the judge’s decision from Patterico. posted by: The Editors @ 11:35 am September 14, 2005 […]
The Unalienable Right » Federal Judge rules Pledge of Allegiance unconstitutional (7a057a) — 9/15/2005 @ 9:11 amSo Patterico, with all this hefty legal analysis, when do you have time for your real job?
Well, note the time this was posted: 11:11 p.m.
I researched it and typed it up after the kids went to bed, with the Roberts hearings playing in the background.
I know, I know: geek. But the big decisions only come along every so often.
Patterico (04a485) — 9/15/2005 @ 10:12 amHelp Me Out, Here
The Supreme Court ruled that Michael Newdow didn't have standing to argue his case. Wouldn't it therefore be sensible to conclude -- since Newdow's standing didn't change between his successful ruling from the panel of the N…
Yippee-Ki-Yay! (d4c144) — 9/15/2005 @ 10:17 amI agree that Judge Karlton got it wrong, but I reserve judgment on whether he screwed up big time. Perhaps the Clam can weigh in and tell me whether prudential standing is more of a substantive issue or a jurisdictional issue, since he had this subject in fed courts and I did not.
Imagine this case: an appeals court upholds two lower decisions–one denying summary judgment for the defendant, and one on the issue of damages. The supreme court reverses the summary judgment issue, finding for the defendant, and does not address the issue of damages because it no longer needs to. The issue as to damages should not have been reached by the appeals court, but still remains as precedent despite being reversed on other grounds.
The above case is different from an Article III standing issue: if the lower court had no jurisdiction under the Constitution to hear the case, then any decisions that depend on it are rendered null and void. This seems to be what I remember from fed courts class, and seems to be what Judge Karlton is arguing above. If so, a court could not even assume Article III standing to dispense with an easy decision on the merits, even againt the plaintiff. Such is the nature of jurisdiction.
But the cases cited by Karlton tell a different story for prudential standing; at the very least, one may assume prudential standing and reach the merits of a case, even if proper only to find for the defendant. The severability of these issues, and the difference from Art. III standing, is important: even though a court may not assume standing and find for the plaintiff, a court may still erroneously find standing and be reversed on appeal. If prudential standing is analogous to a substantive issue that is necessary for deterining a later issue (like the summary judgment issue in my hypo), then a reversal of the standing issue does not mean that the other issues lack precedential value (like the damages issue).
Matto Ichiban (cd9a4c) — 9/15/2005 @ 10:43 amHow much difference does this make? Suppose Karlton had said that although he was not bound by the panel decision he agreed with it and therefore he would rule the same way?
James B. Shearer (fc887e) — 9/15/2005 @ 11:01 amI think all these legal macinations miss the point. God put Judge Karlton on the bench to speak for Him. Judge Karlton, speaking for God, says God doesn’t want “under God” in the Pledge. At that point all other arguments are mute.
Lew Clark (e7a2ae) — 9/15/2005 @ 11:48 amNah, Lew. God is going to have the Roberts Court reverse this decision . . . but God wants an easier path for Bush’s Justices, so he has created this reversible blip to inflame the public against liberals. The fact that the blip is so comically wrong simply shows that He has a sense of humor.
(I hope you can tell this is tongue-in-cheek . . .)
Patterico (302ce1) — 9/15/2005 @ 11:59 amHow much difference does this make? Suppose Karlton had said that although he was not bound by the panel decision he agreed with it and therefore he would rule the same way?
That’s what he should have done, if that’s what he thinks. I think he wanted to blame it on somebody else.
Patterico (302ce1) — 9/15/2005 @ 12:00 pmMatto,
Karlton should have found himself some better cases, then, because his premise does not logically flow from these cases — at all . . . for the reasons I state in the post at great length.
Patterico (302ce1) — 9/15/2005 @ 12:03 pm[…] Other blogs (against ruling): Michelle Malkin: ONE NATION, UNDER ATHEISTIC INSANITY… Blogging For Bryant: Bryant Calls Pledge of Allegiance Ruling “Seriously Flawed” Patterico: Judge Lawrence Karlton Screws Up the Pledge Case — Big-Time La Shawn Barber: If You Haven’t Gotten the Message Yet… […]
Fishkite » Blog Archive » One Nation Under (41253b) — 9/15/2005 @ 12:15 pmI understand that the Supreme Court opens with an invocation like, “God save the United States and this honorable court” (or some such, it’s been awhile since I argued a case there). 😉
Perhaps Judge Karlton should try that and see if his rulings get any more respect.
There are actually Christians who are not eager to say the pledge. Somewhat along the lines of “do not swear”: if one is known to be honest there is no need to put your hand on a Bible to “guarantee” you are telling the truth. That said, I think the effort to get rid of the phrase (and through the courts- not even by a debate in the legislature) is fed by the desire to make the US a country that is “Free from Religion”, rather than having freedom of religion. To try to say that religion is ok as long as you keep it in the privacy of your home or in specified approved areas puts it in the realm of pornography or intoxication. Most people who are theists of any stripe probably don’t appreciate that.
MD in Philly (b3202e) — 9/15/2005 @ 1:10 pmI think you are right, Patterico, that the cases could have been better, and so the issue is not at all put to rest by Judge Karlton’s analysis. I’m not at all sure any definintive cases on this subject exist, and Karlton’s decision could very well be reversed.
I do think, however, that there is some logic to the analysis. The cases cited did say something important: the court may analyze the other issues without first analyzing prudential standing. This rule is inapposite with a jurisdictional view of prudential standing, implying that it is just an issue on par with my summary judgment hypo. From that, one might make the inferential leap that a court may make an erroneous ruling on prudential standing, or erroneously neglect to address prudential standing (the Ninth Circuit’s Newdow decision), but that its decision on the other issues is nonetheless still sound and citable. Only a jurisdictional view of prudential standing would say otherwise, which again is inconsistent with the cited cases.
The reader is left to decide whether this inference is too weak, and I agree that for such an intuitively odd ruling stronger support should have been provided.
Incidentally, no one assumed standing arguendo and then found for the plaintiffs. Judge Karlton found that some of the plaintiffs had proper standing, and the Ninth Circuit never addressed prudential standing in the previous case (at least, not that I could find).
Matto Ichiban (cd9a4c) — 9/15/2005 @ 1:19 pmWell, Matto, I haven’t had a chance to really dive into this subject, but I think it’s awesome, and, sadly, have realized what I will be spending my weekend doing.
Initial thoughts: I haven’t read the Supreme Court’s decision in Newdow recently, but wasn’t the basis for his lack of prudential standing due to the generalized, citizen-suit nature of his complaint (given his lack of direct custody of his daughter)?
If so, I’m pretty sure that the constitutionalization (insofar as Congress cannot create a cause of action that would be legitimate under Article III) of that portion of prudential standing in recent Court decisions might well keep that aspect of prudential standing as a threshold, rather than a substantive issue.
Angry Clam (fa7fff) — 9/15/2005 @ 1:26 pmIncidentally, no one assumed standing arguendo and then found for the plaintiffs. Judge Karlton found that some of the plaintiffs had proper standing, and the Ninth Circuit never addressed prudential standing in the previous case (at least, not that I could find).
Correct, Matto, and thanks. I changed one word in the post and added UPDATE x4 to explain what I did. The judge didn’t do that in this case, of course — he just held that a court *could* do that. That faulty assumption was the basis for his later conclusion that a court could reach the merits, get reversed on standing, and have the merits determination accorded precedential respect.
Patterico (302ce1) — 9/15/2005 @ 1:42 pmNote that he didn’t necessarily *realize* that’s what he was doing — but it *was* what he was doing, in effect.
Patterico (302ce1) — 9/15/2005 @ 1:51 pmBy now this should not need to be said – but it does! Another Carter judge!
Rod Stanton (08fb0d) — 9/15/2005 @ 2:01 pmWho are these crazy people who think the Pledge of Allegiance has any effect at all? I question the value of requiring 6 year olds to memorize and recite this, when they can’t possibly have the slightest clue what any of these words mean: “allegiance”, “pledge”, “for which”, “republic”, “indivisible”, “justice”, and “liberty”. Have there been any studies showing a negative correlation of saying the pledge and committing treason, regardless of the nation’s proximity to God?
Shredstar (532850) — 9/15/2005 @ 2:30 pmBashman et al. on Newdow I’s precedential effect on the new Pledge case
Those who pay attention to such things are continually amazed at the energy and diligence of Howard Bashman, whose How Appealing blog is consistently a fabulous aggregation of up-to-the-minute links to important things legal. If I’m in the mood to blo…
BeldarBlog (af7df9) — 9/15/2005 @ 5:20 pmPatterico:
I’m amazed that I actually understood most of that, though I did have to look up some of the big words (like “pretermit,” which I had never heard before, and “prudential standing,” about which I’m still fuzzy and don’t recall my father ever mentioning… is it new?)
Here’s what I took away from your post:
1) That stupid Carter judge has the authority, on his own, to decide that the current plaintiff has standing and to rule in his favor on the merits.
2) But his claim that he is forced to rule that way on the merits because of the 9th Circus holding is ridiculous, because that holding in effect never happened, because the Supremes sang “Stop In the Name of Standing.” Since Papa Newdow never had standing to sue on his daughter’s behalf, that case (in effect) never occurred. Hence the 9th, whatever it may have imagined it was doing, was not making a precedential ruling on a legal case.
3) The judge engaged in intentional or else foolish handwaving to the effect that if we assume that Newdow had had standing, then the 9th Circus ruling would have been a precedent. But of course, if Newdow had had standing, then the Supreme Court — which had already granted cert — would itself have decided the case on the merits… and therefore, we have no idea in the world whether the 9th’s decision would have stood.
The most that Judge Karlton can say is that IF Newdow had actually had standing, THEN we would have had some sort of precedent in this case… either that the Pledge was unconstitutional — or else that it was constitutional.
Did I get the gist?
Dafydd
Dafydd (f8a7be) — 9/16/2005 @ 1:04 amYeah. I wrote the post mostly for lawyers, but I tried to keep someone like you in mind: a non-lawyer who is intelligent and patient enough to follow it.
I was vague on this part, I guess, so you’re almost right here:
The judge engaged in intentional or else foolish handwaving to the effect that if we assume that Newdow had had standing, then the 9th Circus ruling would have been a precedent.
Sort of. This is what Matto was getting on me about: I wasn’t clear enough about this. (It was late, and it is again.) What I was trying to say was that the precedents cited make no sense unless one is going to posit that a court may, in fact, simply assume that someone like Newdow had standing, and then proceed to rule for him based on that assumption.
Which is a ridiculous way of proceeding.
Patterico (4e4b70) — 9/16/2005 @ 1:12 amFor the record, I just repeated what the judge said in my post. I quickly corrected that in a comment afterward. I agree with you that the judge did not have a binding precedent in this case that he had to follow. In fact, I think he was just taking the easy way out.
Ed Brayton (b7e519) — 9/18/2005 @ 8:59 pmEd,
I have updated my post to reflect this.
Patterico (4e4b70) — 9/18/2005 @ 9:40 pmTo Judge Karlton
You should be ashamed of yourself. I am 52 years old, went to Catholic Schools until 12 grade, raised 2 children and “ALWAYS” recited the “Pledge of Alligence” proudly, as it was written. For your information, America is “All under God”. What is this country coming to? This is a travesty to the United States of America!!
WHO OR WHAT GIVES YOU THE RIGHT TO MAKE THIS CHANGE?? YOU AND WHOEVER IS BEHIND THIS ARE PITEFUL CITIZENS??
C. BRENSEKE (f2079d) — 10/4/2005 @ 1:55 pm