Strengthening Constitutional Self-Government

No Left Turns

Ninth Circuit’s latest order in the Pledge case

The Ninth Circuit just ruled on various intervention and other motions in Newdow v. U.S. Congress, denying Mrs. Banning (the mother of the school child at the center of the Pledge case) leave to intervene, denying the U.S. Senate’s motion to intervene, upholding Newdow’s standing to have brought the suit, and directing that he file a brief in opposition to the petition for rehearing and rehearing en banc by (ironically?) Christmas eve. The principal order is available HERE

The Court had earlier (Oct. 9) denied the motions for leave to file amicus curiae briefs in support of the petition for rehearing en banc to every group that filed such motions, including my brief on behalf of the Claremont Institute.

Apart from the troubling refusal of the panel to even consider arguments by amici challenging its ruling, I question whether the panel even had the authority to deny a motion for leave to file an amicus brief in support of a petition for rehearing en banc; such a decision should probably have been made by the full court itself. It looks as though the panel is going to extraordinary efforts not to have to consider arguments challenging the validity of its initial ruling.

Discussions - 2 Comments

If I dispensed prescriptions with the language we use professionally between ourselves, few patients would get it, and they would be harmed. If you are trying to communicate, get off your high horse and use common language. I am not impressed, FYI, if that was your goal.

Dear Mr. McMurray,

I’m curious as to what you found difficult to understand about my post regarding the Ninth Circuit’s latest rulings in the Pledge case. The Court wouldn’t let Mrs. Banning join in the case (denying her leave to intervene). It did let Newdow continue with the case (upholding his “standing” to do so). And the court refused to let a number of groups file friend of the court briefs, also known as amicus curiae briefs. Finally, the court ordered Newdow to reply to the requests (aka “petitions”) by the government to rehear the case by the full court (aka the “en banc” court). All of that seems pretty straightforward to me – and did so in language that I thought pretty common long before I became a lawyer – “intervene”; “standing”; “amicus curiae”; “en banc court”. So no, I did not intend to impress you by using language that anyone who even remotely follows the courts would understand.

John Eastman

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